De La Paz and Comcare (Compensation)
[2016] AATA 925
•21 November 2016
De La Paz and Comcare (Compensation) [2016] AATA 925 (21 November 2016)
Division
GENERAL DIVISION
File Number(s)
2014/5947
Re
Aida De La Paz
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mrs J C Kelly, Senior Member
Date 21 November 2016 Place Sydney The reviewable decision, being the decision made on 6 November 2014 which denied liability for “sprain of shoulder (right)” and “unspecified injury to finger (left)” under section 14 of the Act is affirmed.
..........................[sgd]..............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
COMPENSATION – sprain of right shoulder – injury to fourth finger of left hand – whether claimed injuries caused by increased workload or constant use of computer mouse – whether claimed injuries were contributed to by increased workload or constant use of computer mouse – evidence of specialist medical practitioners – increased workload and use of computer mouse are not contributing factors to claimed injuries – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, s 5A, s 5B, s14
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
21 November 2016
BACKGROUND
Mrs De La Paz (the applicant) seeks the review of the decision made on 6 November 2014 affirming the determination of 17 June 2014 which denied liability for “sprain of shoulder (right)” and “unspecified injury to finger (left)” under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The applicant had submitted a claim for workers’ compensation dated 3 April 2014 in relation to a repetitive strain injury in the right shoulder and left trigger fourth finger which she claimed were a result of constant use of the computer mouse, as well as increased workload since 2013. She claimed that she first noticed the condition on 18 February 2014 and first sought treatment on that day.
The applicant has been a Customer Services Officer with the Department of Human Services since 1991. She is right-handed.
The applicant suffered a fall at work on 1 November 2006. Consequently, on 24 November 2006, the respondent accepted liability for “neck sprain” and “sprain of shoulder & upper arm (right)” pursuant to sections 14, 16 and 19 of the Act, subject to certain time and medical evidence limitations.
The applicant represented herself when she attended the Tribunal hearing.
THE ISSUES IN THE CASE
The issue in the case is whether either or both of the “sprain of shoulder (right)” and “unspecified injury to finger (left)” which became symptomatic on 18 February 2014 arose out of, or in the course of, the applicant’s employment in accordance with section 5A of the Act, or was contributed to, to a significant degree, by her employment, in accordance with section 5B of the Act.
The applicant’s case
The applicant relied on the documentary evidence before the Tribunal from her general practitioner and two physiotherapists, Mr Hauswirth and Mr Thompson, voluminous diary entries from 2013 which she made recording her work in respect of different clients, accounts for treatment that she had for the two conditions the subject of her claim for compensation, and material relating to team meetings and performance assessment.
The applicant was very upset about what she considered was a lack of support from her team leader when she suffered the injuries and made the compensation claim. She felt that she worked hard and met targets but was not valued as an employee and that was one of the reasons her claim had not been accepted. She put in the diary entries and the material relating to team meetings and performance assessment to show that she was a conscientious hard worker who met targets.
The respondent’s case
The respondent relied principally on the medical reports of Dr McGill, rheumatologist, Dr Chan, orthopaedic hand and wrist surgeon, and Dr Kalnins, orthopaedic surgeon.
CONSIDERATION OF THE EVIDENCE AND FINDINGS
The Tribunal accepts that the applicant genuinely believes that the pain in the ring finger on her left hand and the sprain in her right shoulder that began in February 2014 have been caused by her work. The Tribunal accepts that following her fall in 2006, she began using her left hand to use the computer mouse. The Tribunal accepts that she is under significant financial and personal pressure, caring for her mother who has lived with her and her family since 1991 and who began to suffer dementia in about 2012. Her mother requires 24 hour care. The applicant tries to save her leave with pay. She has tried to get carer’s leave and she has tried to bring her brother to Australia to care for her mother. She is the only member of her family in Australia. The applicant has worked overtime up to three nights a week and on weekends but has stopped doing that. She has been working part-time since April 2016.
In addition to the applicant’s oral evidence and the exhibits tendered at the hearing, the Tribunal has taken into account the documents provided to the Tribunal pursuant to section 37 of the Act, known as the “T” documents and supplementary “T” documents.
The Tribunal prefers the opinion of Dr McGill to that of other medical practitioners to the extent that their opinions differ because his report is more comprehensive and detailed in respect of the applicant’s history, his examination, his consideration of investigations and the information provided to him, than those of other medical practitioners. His opinion is therefore more persuasive. The Tribunal prefers the opinions of specialist medical practitioners to the opinions of physiotherapists because the former have greater relevant expertise and experience. The Tribunal takes into account that Dr McGill and Dr Kalnins saw the applicant for medico-legal purposes and are not treating doctors.
Dr McGill examined the applicant on 30 March 2015. In summary, his opinion was that the left ring finger condition was unrelated to the use of a mouse in the applicant’s left hand. In his opinion:
Mild direct pressure on the palmar surface of the left ring metacarpal region would not have influenced the development of flexor tendinopathy at the A1 pully. She was not using her ring finger to click the mouse. When using the keyboard she was using all the fingers with no preference for the left ring finger.
Her left ring finger flexor tendinopathy was diabetes related and unrelated to her work.
She is at high risk for the development of flexor tendon problems in other digits. Although that risk cannot be completely avoided, maintaining good diabetic control will offer the best chance.
She does not need to restrict her physical activities with her hands at work or at home.
Dr McGill discussed the applicant’s diabetes history and concluded that “her diabetic control” was “suboptimal”.
Dr McGill’s opinion in respect of the applicant’s cervical spondylosis and previous radicular symptoms in the right upper arm was:
The degenerative changes in her cervical spine have developed on a constitutional basis. The degree of degenerative change is well within the expected range for her age.
Her work duties are unlikely to have made any difference to the onset or subsequent resolution of the cervical radicular symptoms.
The spontaneous development and subsequent improvement occurred in a pattern in keeping with the natural history of episodes of cervical nerve root irritation.
Although she remains at risk for further episodes, there is no reason for her to limit her activities.
The applicant’s general practitioner referred the applicant to Dr Chan on 18 July 2014 in relation to “tenosynovitis of left 4th digit as a result of repetitive strain injury, persistent locking of left finger, slight improvement with steroid injection”.
Dr Chan’s diagnosis was “a trigger left ring finger”. Dr Chan said the following in his report of 29 July 2014:
She has asked whether this is work-related. I have been quite frank with her and told her that this is a common condition in females of her age. Her Diabetes has also put her at further risk.
At most, I can say that her work is a contributing factor, because her workplace right shoulder injury has increased the amount of work performed by her left hand. However, I do not feel that her work is the main contributing factor.
Dr Chan makes no other mention of the history of the workplace right shoulder injury and there is no reference to that injury in the referral letter dated 18 July 2014. It is therefore not apparent whether he knew when that injury occurred – 2006. Taking that into account and his opinion expressed above, the Tribunal does not accept that Dr Chan’s opinion supports a finding that the “trigger left ring finger” arose out of, or in the course of, the employee’s employment or was contributed to, to a significant degree, by the employee’s employment.
Four reports of Dr Kalnins dated 25 February 2015, 5 May 2015, 7 May 2015 and 14 July 2015 were in evidence before the Tribunal. The applicant was referred to Dr Kalnins by the applicant’s then solicitor. Dr Kalnins saw the applicant only once, on 12 February 2015. The May and July reports were responses to questions from the solicitor.
In his report of 25 February 2015, Dr Kalnins did not attribute the applicant’s left finger condition to her employment. In respect of her right shoulder, he said that she was suffering “from aggravation following a fall in 2006 of her pre-existing degenerative changes in her cervical spine”. How he came to this conclusion given the lapse of about eight years since the fall was not explained. He did not refer to her use of the mouse in her left hand. His comment that he understood that “there has been intermittent aggravation of this degenerative change in her cervical spine” is not an explanation.
In his 5 May 2015 report, Dr Kalnins stated that the applicant had a “temporary aggravation of the pre-existing C5/6 disc lesion in her cervical spine which settled with conservative treatment”. He did not explain what had caused the aggravation.
In his 7 May 2015 report, Dr Kalnins noted that the triggering left fourth digit had settled and repeated his evidence about the aggravation of the neck and right shoulder but gave no reason for the aggravation.
In his report of 14 July 2015, Dr Kalnins stated unequivocally that the 2006 fall had nothing to do with the pain in her left finger. In light of reports from Mr Hauswirth and Dr Chan, Dr Kalnins stated that “[t]here may be temporary aggravation of her triggering finger in her left hand from use of the mouse. However, triggering fingers can occur spontaneously and are not necessary [sic] a result of mouse work.”
The Tribunal finds that Dr Kalnins’ evidence about the trigger finger is consistent with Dr McGill’s evidence. Dr Kalnins does not link it directly with the applicant’s work, but says there “may be” and “might be” temporary aggravation, and concluded “but I do not believe it is the cause of her current symptoms”. His evidence is speculative.
For the above reasons, the Tribunal does not accept that the applicant’s left ring trigger finger condition or the claimed right shoulder or arm condition, arose out of, or in the course of, her employment, or that these injuries were contributed to, to a significant degree, by her employment.
DECISION
For the above reasons, the Tribunal affirms the decision made on 6 November 2014 affirming the determination of 17 June 2014 which denied liability for “sprain of shoulder (right)” and “unspecified injury to finger (left)” under section 14 of the Act.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member ........................[sgd]................................................
Associate
Dated 21 November 2016
Date of hearing 20 June 2016 Applicant In person Counsel for the Respondent Ms R Henderson Solicitors for the Respondent Mr P Lehmann, Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Expert Evidence
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Statutory Construction
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