de Gail and Comcare (Compensation)
[2018] AATA 2309
•20 July 2018
de Gail and Comcare (Compensation) [2018] AATA 2309 (20 July 2018)
Division:GENERAL DIVISION
File Number(s): 2016/2545
Re:Nicole de Gail
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:20 July 2018
Place:Brisbane
I affirm the decision under review.
.................................[Sgd].......................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – liability rejected for bilateral lateral epicondylitis condition – whether condition is an injury or disease – condition was not significantly contributed to by employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
CASES
Zickar v MGH Plastic Industries Pty Limited (1995) 187 CLR 310
Health Insurance Commission v Van Reesch and Anor [1996] FCA 1118
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40REASONS FOR DECISION
Deputy President Dr P McDermott RFD
20 July 2018
BACKGROUND
The applicant, Ms Nicole de Gail, started working with the Department of Defence on
17 March 1998. She is currently employed by the Department at the APS 6 level.On 9 September 2015 the applicant lodged a workers compensation claim for “bilateral lateral epicondylitis” affecting her left and right elbows, which she stated was caused by her “usual duties – typing, general computer work.”[1] She noted that the “pain on-set was gradual and became progressively worse over the course of 3 weeks”. She stated that she first noticed the injury on 9 January 2015 at 9am, and sought medical treatment on
30 January 2015.[1] Exhibit A, T-documents, T3.
On 15 January 2016 the respondent made a determination to reject liability for “aggravation of lateral epicondylitis (bilateral)” pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’). The delegate of the respondent outlined that they were satisfied that the applicant suffered an ailment, but they considered that her employment was not significant in the development of the ailment.
On 12 February 2016 the applicant requested a reconsideration of the determination of 15 January 2016. In her request the applicant withdrew the part of her claim relating to her left elbow. She stated, “I am happy to forgo the claim with regard to my left elbow.”[2]
[2] Exhibit A, T-documents, T20.2, at p. 197.
On 11 March 2016 a delegate of the respondent made a decision to affirm the determination.
On 11 May 2016 the applicant lodged an application for review with this Tribunal.
ISSUES
The primary issue to be determined in this matter is whether the respondent is liable to pay compensation for the applicant’s claimed injury pursuant to s 14 of the SRC Act. In that respect, I must consider the following issues:
a)Whether the applicant suffered from a ‘disease’ for the purposes of s 5B of the SRC Act, which was contributed to, to a significant degree, by her employment; and
b)Whether the applicant suffered an ‘injury (other than a disease)’ or an aggravation of an ‘injury (other than a disease)’ for the purposes of s 5A of the SRC Act, which arose out of, or in the course of, her employment.
LEGISLATIVE FRAMEWORK
Section 14 of the SRC Act prescribes the circumstances where the respondent is liable to pay compensation to an applicant.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 5A of the SRC Act contains the definition of ‘injury’, while section 5B of the SRC Act contains the definition of ‘disease’.
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
CLAIM HISTORY
From 2 June 2014 to 24 December 2014 the applicant was on compensation leave for a compensable psychological condition.[3] She returned to work on a graduated return-to-work plan on 5 January 2015.[4]
[3] Exhibit A, T-Documents, T13.1, at p. 93.
[4] Exhibit A, T-Documents, T13.2, at p. 98.
Throughout 2015 the applicant took several periods of compensation leave due to her psychological condition. She was on leave from 20 March 2015 to 2 April 2015, 7 April 2015 to 15 May 2015, 19 to 24 June 2015.[5] The applicant also took numerous days of personal and annual leave. On 7 July 2015 the applicant was advised that she was approaching 45 weeks of compensation leave and her weekly earnings amount would be reduced in accordance with the SRC Act.[6]
[5] Exhibit B, Supplementary T-Documents, ST3.
[6] Exhibit B, Supplementary T-Documents, ST1.
On 10 February 2015 the applicant sent an email to her employer to advise that she had to park in the downstairs carpark because she was taking her small bar fridge home and she was unable to carry it to the barracks due to her “elbow tendinitis”.[7]
[7] Exhibit A, T-Documents, T20.1, at p. 189
The applicant formally notified her employer of the fact that a compensable injury may exist (i.e. the pain she was experiencing in her elbows) on 22 May 2015. The email to her supervisor stated:[8]
“…I began experiencing pain in my left elbow in January this year. After an MRI identified a number of tears in my tendon, I was diagnosed with Lateral Epicondylitis (tennis elbow). The treatment plan was rest and a Corticosteroid injection. Once the initial pain and inflammation from the injection eased I was pain free for approximately 6 weeks however the pain is slowly increasing again and, in addition, I am now experiencing similar pain in my right elbow.
I initially thought the pain was due to moving house over the Christmas break however I am now concerned that it could be an occupational overuse injury (as the pain is in both elbows in the same place) which may be as a result of working at a computer for the past 17 years. Of course this is only speculation (and Dr Google’s diagnosis) however I will seek further medical advice and treatment from my GP next week, including confirmation (or not) of whether this could be an overuse injury and what might have caused the injury.”
[8] Exhibit A, T-Documents, T8.2, at p. 36.
The applicant sent a further email to her employer on 27 May 2015 to advise, “I have seen my GP who believes my pain to be as a result of an occupational overuse injury”.[9]
[9] Exhibit A, T-Documents, T8.2, at p. 35.
On 20 November 2015 Ms Sharyn Hewston, a colleague of the applicant, advised her manager of a diary entry dated 27 July 2015 which she had reportedly made a few days after a conversation with the applicant. This entry recorded:[10]
“Walking to work from VBB talking to Nicole. She mentioned she’d been playing her digital piano all weekend. She advised that she bought it because noise of regular piano echoed however now could put headphones on and play whenever.”
EVIDENCE
[10] Exhibit A, T-Documents, T8.1, at p. 30.
Dr Adrian Morris
Dr Adrian Morris provided detailed clinical notes to the Tribunal pursuant to a summons request. Dr Morris’s notes cover the period 25 February 2014 to 10 October 2016.
In his notes Dr Morris mentions that the applicant was an elite netball player from the age of 16 to 23.[11] More recently the applicant has participated in social netball. On 22 September 2014 Dr Morris noted that the applicant had played “last week for 1st time – knee in brace and enjoyable”.[12] Throughout October to December 2014 Dr Morris reported that the applicant continued to play netball around once a week.
[11] Clinical notes of Dr Adrian Morris, at p. 73.
[12] Clinical notes of Dr Adrian Morris, at p. 62.
On 16 December 2014 Dr Morris noted that the applicant was in the process of moving house.[13]
[13] Clinical notes of Dr Adrian Morris, at p. 54.
On 8 April 2015 Dr Morris noted that the applicant’s elbow pain had been “resolved” through the injection she received.[14] Throughout April 2015 Dr Morris noted on three different occasions that the applicant had been active by playing guitar and cleaning her house.[15]
[14] Clinical notes of Dr Adrian Morris, at p. 44.
[15] Clinical notes of Dr Adrian Morris, at pp. 43, 41 and 40.
On 22 and 27 May 2015 Dr Morris noted that the applicant had again experienced some aches in her elbows.[16]
[16] Clinical notes of Dr Adrian Morris, at pp. 35 and 37.
During the remainder of 2015 Dr Morris reported several instances of the applicant experiencing pain in her elbows. She continued to seek treatment for those pains.
On 27 April 2016 Dr Morris noted that the applicant was experiencing a good recovery in her right elbow. She was participating in “everyday work, driving, carrying groceries, general cleaning all fine with no reaction described” and “slowly building up housework as increased pain when overexerted”. He reported that her left elbow was now “fully resolved” and there was “no pain”, as rest and a reduction in work had allowed its recovery.[17]
[17] Clinical notes of Dr Adrian Morris, at p. 9.
On 16 May 2016 Dr Morris noted that the applicant had “no issues with elbow for 4 weeks, ongoing physio without issue”.[18]
[18] Clinical notes of Dr Adrian Morris, at p. 10.
On 9 June 2016 Dr Morris reported that the applicant moved house again, and experienced no issues with her arms other than normal soreness.[19] The applicant used removalists for most of the work.
[19] Clinical notes of Dr Adrian Morris, at p. 7.
On 11 July 2016 Dr Morris noted the applicant’s complaint regarding her note-taking at a 7.5 hour interview, where she wrote 50% of the time and experienced pain at the end of it.[20] He also noted the applicant experienced no pain when she typed.
[20] Clinical notes of Dr Adrian Morris, at p. 7.
General practitioner clinical records
On 30 January 2015 Dr M Alam, general practitioner, noted that the applicant had “strined [sic] lt elbow recently [sic] moved houses recently. o/e lt elbow – tender ++ mobility is ok.”[21]
[21] Exhibit A, T-Documents, T9.1, at p. 46.
On 11 February 2015 Dr Wendy Price, general practitioner, noted that the applicant had a sore right elbow which started after moving house, and she was experiencing “pain with long period of flexion, heavy lifting”. Her examination revealed “mild tenderness lateral epicondyle” and “normal movement of elbow”.[22] On 4 May 2016 the applicant contacted the medical centre by email to request an amendment to this clinical note.[23] At the hearing the applicant stated that she disputes the accuracy of this note, as it should have recorded that the pain was in her left elbow.
[22] Exhibit A, T-Documents, T10, at p. 52.
[23] Clinical records of Telegraph Road Medical Centre.
On 23 February 2015 Dr M Efanual Haque, general practitioner, noted, “left TE – getting worste [sic]. Pain in left elbow – 6-8 weeks. Plays netball/moved house.” [24]
[24] Clinical records of Everton Hills Family Practice, at p. 2.
On 27 February 2015 an ultrasound was performed on the applicant’s left elbow, and the findings were consistent with “lateral epicondylitis with a small associated small (sic) tear”.[25]
[25] Id.
On 17 March 2015 the applicant was treated with an ultrasound guided cortisone injection to her left elbow.[26]
[26] Clinical records of Everton Hills Family Practice.
On 6 July 2015 Dr Rasika Sudusinghe, general practitioner, noted “B/L tennis elbow; ROM – very tender. Will be applying for WC – discussed. Wanting steroid inj – explained”.[27]
[27] Clinical records of Everton Hills Family Practice, at p. 3
On 27 November 2015 Dr Alam provided a report to Comcare at their request.[28] In that report Dr Alam noted that the applicant reported the onset of the condition as several days prior to 30 January 2015, which was the first and only time he examined the applicant. Dr Alam confirmed that the applicant’s reported condition was a strained left elbow from recently moving house. He reiterated that moving house may have caused the applicant’s epicondylitis.
[28] Exhibit A, T-Documents, T9.
Dr Peter Hackney, general practitioner
On 27 May 2015 Dr Hackney noted, “right elbow lat pain started one month ago. Recommenced work last week after one year off. Types a lot at work.” Dr Hackney treated the applicant with cortisone injections in both elbows at this time.[29]
[29] Exhibit A, T-Documents, T10, at p. 51.
On 8 July 2015 Dr Hackney noted, “elbow pain settled after cortisone injections but has recurred past two weeks – esp left treatment.”[30]
[30] Exhibit A, T-Documents, T10, at p. 50.
On 9 October 2015 Dr Hackney noted “left elbow pain no better and right elbow pain is worse – aches at night”.[31] In a referral to Dr Trevor Gervais, orthopaedic surgeon, also dated 9 October 2015, Dr Hackney said of the applicant, “she is an office worker who returned to work involving a lot of keyboarding in January after a year off. She developed left lat elbow pain a few weeks before that, while typing at home and at work it became a lot worse”.[32]
[31] Exhibit A, T-Documents, T10, at p. 50.
[32] Clinical records of Telegraph Road Medical Centre.
Later on 1 July 2016 Dr Hackney reported that the applicant had been symptom-free in her right upper arm until three days prior when she took notes during a 7 hour interview.[33] He noted that the applicant’s pain started at the end of that session and still hurt when she came to see him.
[33] Clinical records of Telegraph Road Medical Centre, at p. 3.
On 25 July 2016 Dr Hackney reported that the applicant was experiencing no pain in her right elbow at work. He noted that she only sometimes experienced lateral pain at night, and it was gone by morning; this happened around once a week.[34]
[34] Clinical records of Telegraph Road Medical Centre, at p. 2.
At the respondent’s request Dr Hackney provided a report dated 24 March 2017, in which he addressed several questions raised by Comcare.[35] Dr Hackney stated, “[the applicant’s] right extensor common tendon tear is consistent with an overuse injury from long term work related keyboard and mouse use”. He referenced the applicant’s ultrasound investigations, which showed a thickened tendon with micro tears on 17 July 2015 and a macro tear on 21 October 2015. He also noted, “a tear resulting from lifting would not necessarily be associated with thickening [of the extensor common tendon], which is the indicator of a chronic overuse injury”.
[35] Exhibit D, report of Dr Peter Hackney.
Dr Nicholas Bryant, radiologist
On 17 July 2015 the applicant was treated with an ultrasound guided cortisone injection to her right elbow.[36] The radiologist reported “features of common extensor tendinosis were noted on limited diagnostic assessment” and “there are a few small micro tears”.
[36] Exhibit D, report of Dr Peter Hackney, at p. 3.
On 21 October 2015 the applicant underwent an ultrasound on her right elbow.[37] This report noted “the common extensor tendon is thickened” and “the fibres here are poorly defined and are suspicious for a small partial thickness tear”.
[37] Exhibit D, report of Dr Peter Hackney, at p. 2.
Ms Lisa Cairns, physiotherapist
The applicant first consulted Ms Lisa Cairns, physiotherapist, on 17 September 2015.[38] Ms Cairns provided a report to the respondent dated 8 December 2015. In that report Ms Cairns noted that the applicant reported the pain beginning in January 2015 in her left elbow, and around 6-8 weeks later in her right elbow. She noted that the applicant had corticosteroid injections in her right elbow in March, May, June, July and August 2015.[39] Ms Cairns was under the impression that the applicant had only had one injection in her left elbow in July 2015.
[38] Exhibit A, T-Documents, T11, at p. 77.
[39] Exhibit A, T-Documents, T11, at p. 77.
In her report Ms Cairns opined that the applicant has bilateral lateral epicondylitis, with her right elbow being worse than her left. She noted that the applicant is right hand dominant and stated her opinion that the applicant’s current symptoms were not aggravated by a pre-existing or underlying condition. She instead opined that the applicant’s condition was caused by her return to employment following a period of time away. She stated that lateral epicondylitis is considered a repetitive strain injury, therefore employment tasks such as typing, using a mouse, lifting, or filing would be considered contributing factors.
Dr Trevor Gervais, orthopaedic surgeon
The applicant was referred to Dr Gervais by her general practitioner, Dr Hackney. On 24 November 2015 Dr Gervais performed a ‘debride lateral epicondylitis’ surgery on the applicant.[40]
[40] Exhibit A, T-Documents, T6.1.
On 10 December 2015 Dr Gervais provided a report to the respondent.[41] This report confirmed a diagnosis of bilateral epicondylitis. Dr Gervais noted the applicant’s attribution of her condition to work activity. He reported that the applicant had suffered with this condition for some time, and given the failure of non-operative measures (including physiotherapy and steroid injections) he recommended that she undergo the surgical debridement on her right side. Dr Gervais noted that the applicant also wished to have the procedure performed on her left side once she had recovered.
[41] Exhibit A, T-Documents, T12.
Dr Sumant Kevat, rheumatologist
Dr Kevat provided a report dated 4 January 2016.[42] In this report Dr Kevat spoke about the applicant’s employment history, including the applicant’s confirmation that her work entailed about 50% computer use and the remaining time was spent in meetings and other forms of communication. Dr Kevat noted that the applicant’s pain in her right elbow had lessened following the surgery.
[42] Exhibit A, T-Documents, T14.
Dr Kevat confirmed a diagnosis of bilateral lateral epicondylitis, stating that the applicant had the typical pain and appropriate physical signs consistent with that condition. He determined that “it is most likely that [the applicant’s] bilateral epicondylitis was a result of the activities relating to moving house. Her occupational activities would have the effect of aggravating the complaint”.[43]
[43] Exhibit A, T-Documents, T14, at p. 144.
Dr Kevat also provided a supplementary report dated 10 October 2016, in which he confirmed the opinions outlined in his original report.[44] Dr Kevat stated his awareness of the fact that there was some dispute about the onset date of the applicant’s claimed right elbow condition. On this he commented, “regardless of the sequence my conclusion was that the injury to both elbows probably occurred at the same time, though symptoms were more prominent initially on one side”. He also determined that it was less credible “to propose separate aetiologies for essentially the same type of problem on each side”.
[44] Exhibit F, supplementary report of Dr Kevat dated 10 October 2016.
Dr Kevat stated his judgement that, “computer related work was eventually an exacerbating rather than a causal factor. It seems unlikely to me that computer related actions or extensive handwriting could generate the force to produce an intra-substance tendon tear; manual lifting activity is more likely to do so”.
Dr Kevat concluded that the applicant’s employment did not significantly contribute to the development of her right arm symptoms.
Dr Ki Douglas, occupational physician
Dr Ki Douglas provided a medical report dated 8 February 2016, in which she stated, “epicondylitis affects 1 to 3% of the population. Lateral epicondylitis is associated with manual work, being a blue collar worker and having psychological distress. There is also an association with repetitive bending and straightening of the elbow for more than one hour a day… There was no statistically significant association with use of a keyboard, using hands overheard or use of vibrating tools… It can be concluded that Ms De Gail’s lateral epicondylitis is not due to typing and using a computer”.[45]
[45] Exhibit A, T-Documents, T21.1, at p. 214.
At the hearing Dr Douglas gave evidence that there is not always a specific cause of epicondylitis. She stated that there is not always an explanation for the onset of the condition, and it is something which just happens to some people.
Evidence of the applicant
The applicant provided a statement to Comcare in support of her claim on 23 November 2015.[46] In this statement the applicant referenced a discussion with Dr Hackney in which he suggested that her condition was likely a result of returning to the workplace after an extended absence, as she would have become de-conditioned during her time off work. She also noted that her physiotherapist (Ms Lisa Cairns) agreed with Dr Hackney’s view that her condition was a result of her return to the workplace.
[46] Exhibit A, T-Documents, T7.
In her request for a reconsideration by Comcare dated 12 February 2016 the applicant stated that the onset of pain in her right elbow occurred in the absence of any “self damaging behaviours”, for example lifting or playing piano.[47] She noted that activities like these had ceased due to the pain in her left elbow. The applicant stated that she in fact notified her supervisor of her injury, or the requirement for treatment for the injury, as early as 10 February 2015; however it was not reported as a workplace injury at this time as it was not until further investigation had taken place that Dr Hackney attributed the injury to her workplace.
[47] Exhibit A, T-Documents, T20.2, at p. 197.
In the reconsideration request the applicant also outlined that she played piano or guitar on “very rare occasions” due to pain in both of her elbows. She stated that she used to play social netball for a few months out of each year, but she ceased playing regularly in May 2014 after a diagnosis of osteoarthritis in her right knee. Since this diagnosis she has only played “a handful of games”, with the use of a knee brace. She confirmed that she utilised removalists and her brother to assist her with moving house, and she did not personally lift any heavy items.
In her application to the Tribunal dated 11 May 2016 the applicant stated that her right elbow did not become problematic until 4 months after she moved house. She stated her belief that her injury is a result of keyboard and mouse use over an 18 year period, from repetitively moving her arm from a bent position when using the keyboard to an extended position when using the mouse.[48]
[48] Exhibit A, T-Documents, T1.
The applicant has provided an additional statement dated 15 August 2016.[49] In this statement the applicant described how, prior to commencing leave in 2014, her role had involved taking extensive hand-written notes. This note-taking continued when she returned to her role in January 2015.
[49] Exhibit C, statement of the applicant dated 15 August 2016.
The applicant confirmed that the pain in her right elbow began in April 2015, and the diagnosis of lateral epicondylitis was made in May 2015. By July 2015 the pain began to have an effect on her ability to work full-time.
The applicant stated that a particular incident had occurred recently where she was required to take hand-written notes during a 7.5 hour interview, with rest periods. This incident aggravated her elbow injury, but the pain had since settled.
She noted that before this incident she had experienced minimal discomfort completing day-to-day activities.
The applicant concluded that it is probable that hand-writing contributed to her injury.
SUBMISSIONS
Applicant submissions
The applicant gave oral submissions at the hearing of this matter. She maintained that the onset of pain in her right elbow was not until April 2015, and stated that this is supported by subsequent scans and medical reports.
The applicant also stated that there was no record or referral for a cortisone injection by ultrasound for her right elbow in March 2015, which was suggested by physiotherapist Lisa Cairns. She maintains that there was no injection to her right elbow in March 2015.
The applicant did not provide any further submissions and advised that she seeks to primarily rely on the documentary evidence before me. The applicant did not give evidence or call any witnesses at the hearing.
Respondent submissions
The respondent accepts that the applicant suffers from right wrist lateral epicondylitis. However, the respondent considers that this condition cannot be classified as an ‘injury’ or a ‘disease’ for the purposes of the SRC Act.
By definition, the applicant’s condition cannot be considered an injury that arose out of, or in the course of her employment with the Department of Defence for the purposes of s 5A of the SRC Act, as it was the result of a progressive underlying disease process.[50] The applicant herself has submitted that the condition is due to chronic overuse, performing computer work over an extended period. This was considered by Northrop J in Health Insurance Commission v Van Reesch and Anor [1996] FCA 1118, when he stated that “a consequence solely of a progressive autogenous disease is not an injury”.
[50] Zickar v MGH Plastic Industries Pty Limited (1995) 187 CLR 310 at 318 and 325-327.
The respondent submits that the applicant’s condition also fails to meet the definition of ‘disease’ for the purposes of s 5B of the SRC Act, as the condition was not an ‘ailment’ or an ‘aggravation of such an ailment’ which was contributed to, to a significant degree, by the applicant’s employment with the Department of Defence.
The respondent has submitted that the applicant’s condition was not contributed to, to a significant degree, by her employment with the Department of Defence for three key reasons.
1) No contribution from computer related work
The respondent contends that the cause of the injury argued by the applicant (i.e. an extended period of computer work) did not significantly contribute to the onset of her condition.
In this respect the respondent highlighted the applicant’s employment circumstances at the time of the injury, noting in particular that she had taken approximately 6 months off work shortly before sustaining the claimed condition. Prior to this period of leave the applicant worked an ordinary 37.5 hour work week. When she returned on 5 January 2015 the applicant worked only 12 hours for the first week, and gradually increased from there until 9 March 2015, when she was expected to return to a 37.5 hour work week. The respondent also highlighted that the applicant took further periods of leave during March, April and May 2015, meaning that she was at work for a very limited amount of time during the lead up to when she claims the condition first appeared.
The respondent referenced a comprehensive office ergonomic workstation assessment report dated 5 August 2015, which reported the duties of the applicant at that time to include:[51]
a)desk based office duties;
b)reading and drafting policies;
c)typing reports and emails;
d)responding to correspondence;
e)writing and reviewing documents;
f)staff management;
g)attending meetings; and
h)minimal phone use.
[51] Exhibit A, T-Documents, T13.8, at p. 132.
Dr Sumant Kevat, rheumatologist, reported that at the time of the applicant’s injury she was a team manager within an administration team, and this work entailed about 50% computer use.[52] The remaining time was spent in meetings and communicating in other forms.
[52] Exhibit A, T-Documents, T14, at p. 141.
Dr Ki Douglas, occupational physician, has reported that “epicondylitis affects 1 to 3% of the population” and is associated with manual work, being a blue collar worker, and having psychological distress. While she reports that there is an association with repetitive bending and straightening of the elbow for more than one hour a day, “there was no statistically significant association with use of a keyboard…”[53]
[53] Exhibit A, T-Documents, T21.2, at p. 214.
Dr Kevat has considered that it is unlikely that computer-related actions or extensive handwriting could generate the force required to produce an intra-substance tendon tear, and concluded that the applicant’s employment did not contribute to a significant degree to the development of her right arm condition.[54]
[54] Exhibit F, supplementary report of Dr Kevat dated 10 October 2016.
The respondent disputed the relevance of medical opinions preferred by the applicant, including those of Dr Peter Hackney, general practitioner, and Ms Lisa Cairns, physiotherapist. Dr Hackney opined that the applicant’s tendon tear “is consistent” with an overuse injury from long term work related keyboard and mouse use. Dr Hackney further stated:
“…Her ultrasound investigations support this, showing a thickened tendon with micro tears 17 July 2015 and later a macro tear on 21 October 2015. A tear resulting from lifting would not necessarily be associated with the thickening, which is the indicator of a chronic overuse injury.”
The respondent considers that Dr Hackney’s opinion should not be preferred to the opinions of Dr Kevat and Dr Douglas because his qualifications and experience are not as meaningful as theirs; he was not made available for cross-examination and therefore his opinion could not be tested; his use of the word ‘consistent’ rather than ‘caused by’ or ‘significantly contributed to’ does not satisfy the relevant statutory provision; and his discussion of radiology reports of 17 July 2015 and 21 October 2015 is not persuasive. On this last point the respondent notes that the 17 July 2015 report included a description of a procedure (i.e. an ‘ultrasound guided injection right elbow’) rather than providing the results of an investigation. Further, the respondent considers that the reference to ‘small micro tears’ in the report of 17 July 2015 appears to be consistent with the description of ‘small partial thickness tear’ in the report of 21 October 2015.
The respondent also referred to the report of Ms Lisa Cairns, which expressed the view that the “main driver” of the applicant’s condition was “her return to employment following the previous year off”. The respondent considers that the opinion of Ms Cairns should not be preferred because she was similarly unavailable for cross-examination; her qualifications and experience are not as meaningful and relevant as those of Dr Kevat and Dr Douglas; and she does not appear to have been provided with all the relevant information, instead relying on the applicant’s own self-reporting.
2) Alternative event capable of causation
The respondent submits that there is an alternative event which should be considered capable of causing the applicant’s condition; i.e. her moving house around December 2014. On 30 January 2015 Dr M Alam, general practitioner, noted “strined [sic] lt elbow recently [sic] moved houses recently. o/e lt elbow – tender ++ mobility is ok.” Dr Alam diagnosed the applicant with left tennis elbow.
Dr Wendy Price, general practitioner, noted on 11 February 2015 that the applicant had reported, “sore right elbow, started after moving house, pain with long period of flexion, heavy lifting, no swelling or redness”. The applicant has disputed the accuracy of this note, but has not produced evidence to support this argument.
Dr Kevat also opined that “it is most likely that [the applicant’s] bilateral epicondylitis was a result of the activities relating to moving house”. He further concluded that “regardless of the sequence, my conclusion was that the injury to both elbows probably occurred at the same time, though symptoms were more prominent initially on one site.”
The respondent submits that the clinical notes from these doctors are clear evidence that the claimed condition is causally related to the applicant moving house, rather than her employment. Notwithstanding the applicant’s evidence that she hired removalists, had the assistance of her brother and avoided lifting heavy items, the respondent maintains that the applicant reported to general practitioners in January and February 2015 that the pain in both elbows was related to moving house, and the applicant abandoned her claim with respect to her left elbow as she accepted that it was caused by her moving house.
3) No compensable aggravation of pain
The respondent submits that any pain experienced in her right arm while she was at work did not constitute a compensable aggravation; rather, she experienced temporary exacerbations of pain that were part of her non-work related condition. Dr Kevat confirmed this, stating that what the applicant experienced at work was, “a worsening of the diagnostic indicators in the form of pain and limitations on movement”, and a worsening of her experience of the symptoms.
The Full Court has held that the circumstances in which pain may be capable of constituting the aggravation of a pre-existing injury are limited. In Commonwealth v Beattie (1981) 35 ALR 369 at 210 Evatt and Sheppard JJ stated:
“It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.”
The respondent also relied on Tippett v Australian Postal Corporation (1998) 27 AAR 40, in which Finkelstein J referred to the above comments in Commonwealth v Beattie at 44, stating:
“This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.”
The respondent argues that this application falls outside of the circumstances where pain can constitute an aggravation. Her pain is not limited to work tasks or her employment, as she also experiences pain in her right arm when she performs activities outside of the workplace. The applicant has stated:
“The pain in both elbows has been debilitating and has affected my ability to work (use computer, mouse, write), drive a car, complete home duties (washing, cleaning and cooking), look after my young children, take care of personal hygiene needs and participate in leisure activities (piano, guitar).”[55]
[55] Exhibit A, T-Documents, T7, applicant statement dated 23 November 2015.
The respondent submits that as the applicant does not suffer from a disease or injury, the respondent is not liable for the claimed condition under s 14 of the SRC Act. The respondent seeks that the reviewable decision be affirmed.
CONSIDERATION
When the applicant notified her employer of her condition on 22 May 2015 she indicated that she had initially thought that the condition was due to her moving house. I consider that her moving house is the most probable cause of her condition. In coming to this conclusion I rely upon contemporaneous medical evidence. A record of Dr Alam, general practitioner, indicates that on 30 January 2015 the applicant attended Dr Alam who diagnosed the applicant with left tennis elbow; the record indicates that the applicant had a strained left tennis elbow and she had “moved houses recently”. A record of Dr Price, general practitioner, indicates that on 11 February 2015 the applicant reported “sore right elbow, started after moving house, pain with long period of flexion, heavy lifting, no swelling or redness”.
I appreciate that the applicant disputes the record of Dr Price, but Dr Price has not been called as a witness to challenge the contents of her record. The record of Dr Price that the applicant had a “sore right elbow” does not support the contention of the applicant at the hearing that the onset of pain in the right elbow was not until April 2015, which she claims is supported by scans and medical reports. Indeed, the report of Dr Price indicates that the onset of pain was much earlier than April 2015.
I have relied upon the opinion of Dr Kevat who had concluded that it is most likely that the condition of the applicant was as caused by “activities relating to moving house”. Dr Kevat has provided cogent reasons for his conclusion, remarking that it is unlikely “that computer related actions or extensive handwriting could generate the force to produce an intra-substance tendon tear; manual lifting is more likely to do so”. The fact that Dr Price recorded that the applicant on 11 February 2015 had mentioned “heavy lifting” makes me come to the conclusion that the involvement of the applicant in heavy lifting has caused both the left and right elbow conditions of the applicant. Dr Douglas has also stated in her report of 8 February 2016 that the epicondylitis condition is associated with manual work. I rely upon this report as well as Dr Kevat’s opinion that heavy lifting is more likely to cause the condition. Having regard to this opinion I also consider that Dr Kevat was correct in concluding that the injury to both elbows had probably occurred at the same time.
The applicant had relied upon reports of Ms Cairns, physiotherapist, and Dr Hackney, general practitioner. I give my reasons why I do not give great weight to both of these reports.
Ms Cairns, physiotherapist, in her report of 8 December 2015, considers that the return of the applicant to work was the “main driver” of the condition of the applicant. Ms Cairns has provided as the basis for her opinion that it was when she returned to full-time employment that her current condition began. However, Ms Cairns does not appear to have had access to the general practitioner records which refer to the condition having developed after the house move.
Dr Hackney, general practitioner, in his report of 24 March 2017 gave his opinion that the right extension tear of the applicant is consistent with an overuse injury with long term work related keyboard and mouse use. However, the report of Dr Hackney does not contain information upon which I can make a finding that the employment of the applicant significantly contributed to her condition. In his report he refers to ultrasound investigations concerning a thickened tendon with micro tears on 17 July 2015 and a macro tear on 21 October 2015, stating that this demonstrates a progression in the condition; however, both reports refer to small tears. He also stated, without explanation, that he considered that a tear resulting from lifting would not necessarily be associated with thickening. His report does not acknowledge that general practitioners from his practice had recorded that the applicant had experienced pain in both elbows after the house move and that the records referred to the house move.
Both Dr Douglas and Dr Kevat have given opinions that the use of a keyboard and mouse have not contributed to the condition of the applicant. I rely upon their opinions which are supported by cogent reasons. Dr Douglas has reported that there is no significant statistical association with the use of a keyboard and supported her opinion with academic literature. Dr Kevat has stated that the use of a keyboard would not generate the necessary force to cause an intra-substance tendon tear.
While the applicant does not bear an onus of proof in these proceedings, the applicant cannot succeed unless there is evidence upon which I can make a finding that the employment of the applicant significantly contributed to her condition. There is no cogent evidence that the lateral epicondylitis condition of the applicant is an ailment that was contributed to by her employment. There is no medical evidence upon which I can rely to support such a contention. I have read the records of the attendance by the applicant upon the general practitioners on 30 January 2015 and on 11 February 2015 in relation to her elbow conditions; at that time she made no mention of any workplace contribution. There is also no cogent evidence that the employment of the applicant has in some way aggravated any pre-existing elbow condition of the applicant.
DECISION
I affirm the decision under review.
I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
.................................[Sgd]..................................
Associate
Dated: 20 July 2018
Date of hearing: 11 September 2017 Applicant: In person Counsel for the Respondent: Ms Kate Slack Solicitors for the Respondent: Lehmann Snell Lawyers
2
3
0