Demian and Comcare (Compensation)
[2016] AATA 318
•17 May 2016
Demian and Comcare (Compensation) [2016] AATA 318 (17 May 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2259
Re
Joelinda Demian
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member Date 17 May 2016 Place Melbourne The decision under review is affirmed.
................................[sgd]........................................
Dr Damien Cremean, Senior Member
COMPENSATION — ailment — bilateral carpal tunnel syndrome — whether compensable ailment – whether employment aggravated ailment — whether employment contributed to aggravation of an ailment to a significant degree — decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 7(7),14,
Cases
Comcare v Lofts (2013) 217 FCR 220
Comcare v Reardon (2015) 148 ALD 356
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Muscat and Australian Postal Corporation [2016] AATA 13
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Dr Damien Cremean
17 May 2016
This Application is made to review a decision of the Respondent made on 18 March 2015.
By that decision. the Respondent affirmed a determination made on 2 January 2015 that it was not liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) in respect of carpal tunnel both wrists (bilateral carpal tunnel syndrome).
The Applicant, Ms Demian, gave sworn evidence at the hearing and called medical witnesses. The Respondent called a medical witness and two further witnesses, both work colleagues of the Applicant. Each of the witnesses was cross-examined.
In what follows I provide an outline of the evidence of each witness.
Outline of Evidence
The Applicant
The Applicant, Ms Demian, is aged 36 years and was born on 11 April 1980.
The Applicant is married with three children. She is a former smoker who commenced smoking at age 14 but who ceased in 2005, although she still does have the occasional cigarette. Since around 2009 she has been running a small waxing business (called Simply Smooth Curves) from her home.
The Applicant, in sworn evidence, confirmed that the contents of her Witness Statement were true and correct. The following is taken from her oral evidence and from her Statement of Facts and Contentions. Much of it is uncontroversial, in any event.
Ms Demian commenced work with the Department of Defence on 7 November 2006, when she was about 26 years of age. She worked initially as a Data Entry Clerk in the Department’s Finance section as a fulltime ‘temp’ and from 8 April 2007 as a full time employee. Previously she had studied at University (commencing in about 1998, but finding she was not suited to it) and had worked for Bunnings, the Commonwealth Bank and Optus.
In about February 2012, upon returning from maternity leave, the Applicant was transferred to the Defence Publishing Service (“DPS”) in its Despatch Division. Her work there largely included packing and despatching boxes containing manuals and publications. It also required computer- based data entry.
On 8 October 2012 the Applicant tripped and fell at work, injuring her right side including her right wrist and right shoulder. The Respondent accepted liability under the Act for that injury to the Applicant.
The Applicant was off work for about two months and in about January 2013 returned to work. She was transferred again to the DPS Tasking and Customer Service Department, working four days and 30 hours per week.
This new role mainly involved Ms Demian undertaking sustained data entry duties using dual monitors.
After a while however the pain in her right shoulder became such that she underwent right shoulder surgery with excision of the acromioclavicular joint with arthroplasty on 21 July 2013. Following surgery, the Applicant again returned to work within the Tasking and Customer Service Department of DPS which is where she continues to work.
In early 2014, the Applicant began experiencing intermittent pain in her shoulder, arms and wrists while performing her work. She says she experienced a weight gain during that year and that her workload increased. She was told at a meeting that the workload had increased by about 40%.
The Applicant says her workload increased because one co-worker retired and another was experiencing personal issues. This meant remaining duties were shared between only the Applicant and one other employee. Further, she said there were closures of other worksites meaning the premises at Laverton became, in effect, the main office.
Her work was very repetitive. Around April and May 2014 the Applicant began experiencing intense pins and needles in her hands while performing work duties. She thought at first that this was due to her shoulder injury. To reduce her discomfort, the computer mouse was changed but that did not help. A left-hand keyboard was also tried, but that did not help either.
At this point, about 70% of the Applicant’s work involved data entry and warehouse picking. Her duties specifically included: data entry; telephone answering; handwriting; answering the service counter; lifting shelves and archived boxes.
The Applicant said that her work was both physically and mentally demanding and was done at a fast pace. She said in cross-examination she is fast at her job. She would be processing 30 to 50 work requests a day and this involved both keying in information and handwriting. Her work called for fine finger movement and a great deal of hand and wrist bending.
The Applicant decided to visit her General Practitioner, Dr Cameron, and he arranged for her to undergo a full set of blood tests. The results were unremarkable. Because she was still experiencing sharp pain in her forearm, Dr Cameron arranged for the Applicant to undergo a magnetic resonance imaging procedure (MRI), but that showed no significant degenerative changes within the cervical spine and no neural compression lesion.
The Applicant lost some weight (about six kilograms) after going on a course of medication, but her symptoms remained the same.
The Applicant was then referred to Dr David Freilich, a neurologist, for nerve conduction studies which, on 1 July 2014, revealed bilateral carpal tunnel syndrome (“CTS”). A later study conducted on 28 July 2014 showed her symptoms had progressed, even compared to studies performed only a month earlier.
The Applicant is still working in her job and is still experiencing symptoms. The pain persists. The Applicant’s intention is to have surgery in due course, and she is on a waiting list for this.
Dr Todd Cameron
Dr Cameron, the Applicant’s General Practitioner, gave affirmed evidence by telephone. He also provided a report dated 16 January 2015, which he confirmed was true and correct.
In that report, Dr Cameron said he first saw the Applicant on 28 April 2014. On that occasion, she presented with onset of shoulder and arm pain with occasional shooting pain since the evening of Friday 25 April 2014. The report records that he next saw her on 5 May 2014 when he said her symptoms had evolved to become more typical of bilateral carpal tunnel syndrome. His specific diagnosis was that the Applicant was indeed suffering from CTS, which he shortly described as being where the median nerve is compressed and causes burning and numbness in the hand and fingers and in more severe cases weakness and clumsiness.
Dr Cameron in his report also notes that the Applicant has been referred to Ms Leanne Graham, an occupational therapist, and Mr Frank Lin, a plastic surgeon. He says he referred her to the latter for a surgical solution, being a carpal tunnel release, as a reasonable next step.
Dr Cameron agreed in cross examination that these were the Applicant’s weights:
·84.1 kgs on 1 July 2013;
·86.9 kgs on 7 November 2013;
·93.9 kgs on 22 April 2014;
·95.7 kgs on 28 July 2014; and
·89.5 kgs in January 2016.
Dr Cameron agreed that CTS is more prevalent in females, and that weight gain is a factor in its occurrence. Dr Cameron agreed that his view about the contribution of the Applicant’s work duties to her CTS may have been affected had he known more about her absences or times away from work.
Professor Steven Davis
Professor Davis gave affirmed evidence by telephone on behalf of the Applicant. He confirmed the contents of his report dated 29 June 2015 were true and correct. He said he was the Director of Neurology and a full Professor at the University of Melbourne, with around 450 peer-reviewed articles to his name.
He expresses the view in that report that the Applicant has developed fairly typical bilateral carpal tunnel syndrome, probably worse on the right side which came on in the setting of an intense period of work and that she now has very typical features of carpal tunnel syndrome, confirmed on nerve conduction studies.
He said CTS symptoms typically appear more at night and often patients, as with the Applicant, may be symptom free during the day.
Professor Davis says that in the Applicant’s case there are probably some constitutional factors that have contributed to her CTS. In oral evidence he referred to the Applicant’s obesity as being no question a risk factor. He further said, however, that he would certainly conclude that her repetitive and fairly intense manual work in early 2014 has been a significant contributory factor, that is to say, a significant aggravating influence on the development of the syndrome.
Although the link to work in the Applicant’s case was less direct than in some other cases (for example, abbatoir workers), Professor Davis said in evidence this does not mean there is not a link between the Applicant’s condition and her repetitive work at the computer. Indeed, in this case he was of the view there was a clear relationship. He also said in his report that the syndrome should be accepted as employment related
In relation to the question of whether CTS is best a matter for a rheumatologist (such as Dr Reiter) or a neurologist (such as himself), Professor Davis said that both medical professionals would each consider themselves expert. He acknowledged that rheumatologists are less convinced of a relationship between carpal tunnel syndrome and the workplace than neurologists and that no study yet shows a conclusive relationship between the two.
In cross examination, Professor Davis agreed that obesity is a recognised risk factor in the development of CTS but said that employment is at least as important, if not moreso. In the Applicant’s case, obesity was relevant but not the sole cause of her condition.
In cross examination, Professor Davis also conceded that his views in the Applicant’s case were based on what he was told by the Applicant about her increased workload. He said that his working assumption was, in effect, that her symptoms had come on because of her increased workload. If there was no outbreak of intensity in her workload that would make his current analysis less compelling.
In re-examination, Professor Davis repeated that there was in this case a compelling relationship between the Applicant’s work and her symptoms.
Dr Loretta Reiter
Dr Reiter, a rheumatologist, gave affirmed evidence on behalf of the Respondent. She also confirmed the contents of her report dated 18 December 2014 were true and correct.
In that report, Dr Reiter expresses her view that the Applicant has CTS due to her gender and being overweight. She says it is not due to the nature of her work, which only involves typing. She says that current medical evidence does not support the concept that CTS occurs due to repetitive keying.
In oral evidence, Dr Reiter confirmed her view that CTS is not a consequence of keying in information. Dr Reiter repeated that, in the Applicant’s case, there are two factors of significance: being female and being overweight.
Dr Reiter goes on further in her report to say that the Applicant’s current medical condition is not an aggravation, acceleration or recurrence of a pre–existing or underlying condition. In cross examination she stated that typing at a keyboard does not cause an increase in the symptoms of CTS.
Referring to the Applicant’s weight, Dr Reiter says that the Applicant admits to having gained about 16 kg of weight prior to the onset of her symptoms, which is in keeping for bilateral CTS. Obesity, Dr Reiter said in evidence, is a risk factor. Smoking could, however, be discounted as a relevant consideration in this case.
Dr Reiter said in evidence that CTS could be caused, likely, by work factors in the case of someone doing heavy handed work such as that done by a butcher or a boner because the application of force in heavy forceful movements is an important factor in its development.
When asked about whether CTS is more a matter for a neurologist, Dr Reiter said this was not correct: she said she had seen hundreds of cases of CTS in her career to this point.
Lara Jemison
Ms Jemison gave evidence affirmed in person on behalf of the Respondent. She affirmed that her Witness Statement dated 25 November 2015 was true and correct. In that Statement, she says she is employed by the Department of Defence as an Executive Level 1 Assistant Director, Print and Distribution at DPS.
Ms Jemison indicated that since March 2009 she has been the line manager of the Applicant, although she said there are two levels of supervision between herself and the Applicant.
In her Statement, Ms Jemison provides a description of the Applicant’s duties. She says those duties have required certain computer-related tasks to be repeated, for example, entering jobs in the file management system or responding to emails. The former involves, she says, a combination of typing, mousing, copy and paste and click and drag work. She estimates that this would account for about 70% of the work in Tasking.
As to the job description provided by the Applicant, Ms Jemison says she agrees with the Applicant regarding her stated duties in the warehouse and about the nature of each of those duties, but disagrees with the Applicant’s estimate of their number or frequency.
She says also in her Statement that she is not aware of any unusual increases in work load over the last three years, that is to say from 2012. Closure of other sites, from 25 down to 18 commencing in 2009, did not mean all the work went necessarily to Laverton, but it has resulted in some extra work.
Ms Jemison did say in evidence that, due particularly perhaps to the introduction of colour printers, the volume of work at the workplace had increased but the number of jobs had gone down
Ms Jemison also said in cross-examination that in the case of the Applicant’s team, with there being reduced team members, there were the same numbers of jobs but an increase in work for team members.
She said she recalls the Applicant speaking to her about a general increase in workload due to other DPS sites being closed. However, she said those closures translated into increases in work for the Printing Section, not the Tasking section. She said she cannot recall any sudden increase in workload in Tasking.
Ian Correia
Mr Correia gave sworn evidence in person on behalf of the Respondent. In his, evidence he confirmed that his Witness Statement of 13 November 2015 was true and correct.
In that Statement, Mr Correia says that he is the Tasking Supervisor in the Print and Distribution section of DPS. He said in evidence that he supervised about eight staff, including the Applicant, whereas Ms Jameson was in charge of perhaps 35 staff.
He says he has been the Applicant’s supervisor since 2011, first in the Warehouse Dispatch section and, following a short break, then in the Tasking section from 2012.
He says that the majority of the work, roughly 75%, in the Tasking section at DPS comprises data entry to register print jobs which are then sent to the printing section. A further portion of the work, roughly 10-15%, requires keyboard work. Other duties include manual writing, taking phone calls, sending and receiving emails and moving about the office premises at Laverton to attend to reception. Tasking staff also collect boxes of publications from the warehouse for scanning.
Mr Correia says that he cannot recall any unusual increases in work load in the period 2013-2014. He says he does recall that one of the employees in the Tasking section retired at the end of 2013 and in 2015 another moved to a different section.
He says he has had an opportunity to review the job description of the Applicant setting out her duties and he says he agrees that each duty she describes is undertaken in despatch, but he says the day to day work load fluctuates which makes providing an estimate difficult.
Contentions
The Applicant contends that the Respondent is liable under section 14 of the Act in respect of her bilateral CTS as a work related physical injury and that, having regard to the evidence, the decision under review should be set aside.
In support, Counsel for the Applicant made a number of careful submissions on the evidence in light of the provisions of the Act and referred to a number of authorities in the area.
It is fair to say that the Applicant’s case focuses on a link between her extra work duties (including keyboard activities) brought on by staff shortages and her condition. It had been opened that also there was an alternative basis for the CTS in obesity brought on by recovery from shoulder surgery, but after discussion that expressly was not pursued.
The Respondent contends that the reviewable decision, on the evidence, should be affirmed. In support, Counsel for the Respondent undertook careful analysis of the evidence and pointed to factors of significance, including the Applicant’s obesity. He had prepared a schedule of the Applicant’s absences from work including holiday times.
The Respondent contends there is no balanced basis for positing a firm link between the work duties of the Applicant and her CTS and points to personal factors including obesity, as the cause.
Consideration
By section 14 of the Act, the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. This has often been called a “gateway” provision, such as in Comcare v Lofts (2013) FCR 220 at 222. By section 4(9) of the Act, an incapacity for work means an incapacity for work suffered by an employee as a result of an injury, being incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred.
An injury is defined in section 5A(1) as a disease suffered by an employee or 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 such employee’s employment. A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment. An ailment is defined in section 4(1) of the Act as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
A significant degree is defined in section 5B(3) of the Act as meaning a degree that is substantially more than material. Matters which may be taken into account by the Tribunal are set out in section 5B(2) of the Act. They include the duration of an employee’s employment (section 5B(2)(a)) and the nature of, and particular tasks involved in, that employment (section 5B(2)(b)). Other matters also may be taken into account, and section 5B places no limit on those.
The question for me to determine is whether or not the correct or preferable decision is that the Applicant’s condition is compensable under section 14 of the Act. That is to say, whether her condition is an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by her employment while working in DPS. Should her condition satisfy this requirement, then it follows she has a disease under the Act and thus an injury which is compensable if it may also be said that such disease arose out of or in the course of her employment.
I am satisfied it is correct to describe the Applicant as suffering bilateral CTS as described by Dr Cameron in his report. I consider that such condition satisfies the descriptor of an ailment under section 4(1) of the Act (or an aggravation of an ailment as the case may be). I also consider that, subject otherwise to satisfying section 5B of the Act, it meets the definition of a disease and likewise, subject otherwise to satisfying section 5A of the Act, it is an injury under the Act.
The word aggravation in section 5B(1) is not defined in the Act except in section 4(1) as including acceleration or recurrence. I have said previously that I see the word aggravation as synonymous with exacerbation. See Muscat and Australian Postal Corporation [2016] AATA 13 at [47]. In Wiegand v Comcare Australia [2002] FCA 1464 at [21], von Doussa J said: “I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment”. In the context of that case, his Honour said “both expressions convey the same notion, namely that the depression became worse”.
A relevant question to ask with regard the issue of aggravation is whether the Applicant’s condition was made worse or only became worse by reason of her employment. In that regard, the remarks of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634 are apposite:
As applied to a disease [the word exacerbation] is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. A temporary increase in the violence of the symptoms of a disease “is the medical sense of the word according to Funk and Wagnall’s Standard English Dictionary….Moffitt J was right, I think, in saying: “There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.
Windeyer J, in the same case (at 640) speaking of the words in the statute under consideration (aggravation, acceleration, exacerbation or deterioration) said as follows:
The question that each [word] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.
As I take the view above that aggravation is synonymous with exacerbation, these comments apply with equal force also to an aggravation of a disease. As indicated by the remarks of both Kitto and Windeyer JJ, aggravation of a disease may take the form of pain. Finkelstein J said in Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44: Pain is the most common symptom of an injury. He also observed that: if the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury.
There is discussion of this question of pain also in Commonwealth of Australia v Beattie (1981) 35 ALR 369 especially at 378 per Evatt and Sheppard JJ.
As regards this case, the question is whether I should decide that the Applicant’s condition (as an ailment or aggravation of an ailment) is related to her work in the way required by the Act. My view is that it is plausible to argue that excessive keyboard work can cause CTS. In that regard I follow the evidence of Professor Davis as I was urged to do.
Dr Reiter, in her evidence, does not support that view. She referred to the Applicant's work as typing. She said her view was that to be brought about by work the work duties would need to be of a forceful kind such as the work that would be encountered in a butcher shop.
I do not doubt that butcher's work would or may cause CTS but, in light of the evidence of Professor Davis, I do not consider that CTS is brought on by only that type of work. I am not satisfied, however, that in this case I should find that the Applicant's work duties have brought on her CTS.
Professor Davis's opinion was that in the Applicant’s case the intense nature of her work has contributed significantly to her condition. At the same time though, he noted there are probably some constitutional factors which have contributed to her condition also. It was Dr Reiter's view that such factors are solely the cause in the Applicant's case.
I am unable to find, on the evidence, that the Applicant's work duties have been excessive. It was their reportedly excessive nature that led Professor Davis to form his view in the Applicant's case. He agreed though his evidence would be less compelling if the circumstances were different.
The Applicant’s evidence was that she had been engaging in excessive keyboard work and that this brought on her condition. The Applicant gave evidence that two persons had left her team so that the remaining work, of approximately the same volume, was being done by fewer people leading to greater demands being placed upon them. I was provided with a tabulation of PIMS duties attached to her Witness Statement, but that did not take me far.
I accept that two persons had left the Applicant's team, in that one had left and one was frequently absent from work for (undisclosed) personal reasons. That is to say, I accept there was a staff shortage brought about by team departures meaning that the same volume of work, or even an increased volume of work, was being done by remaining team members including the Applicant.
From this, however, I am unable to make a finding in the Applicant’s favour that the work she continued to perform in the reduced team became thereby excessive. It may have been slightly more, but it was not excessive. In that regard, I rely upon the evidence of both Ms Jameson and Mr Correia.
The evidence of both Ms Jameson and Mr Correia was factual and accurate and given by persons, in each case, in a position to know the realities of the workplace including the demands of work duties. Neither supported any view that there were any unusual demands placed on the Applicant in terms of output in the relevant period. Indeed, their evidence was quite the contrary.
This is evidence given by two persons who would definitely know whether the Applicant's work duties were excessive or not at the relevant time(s) and the evidence of neither satisfied me that they were excessive. I place no emphasis on a casual conversation at a meeting where it may have been said that work was increasing, by perhaps up to 40%.
I therefore reject the version of excessive work advanced by the Applicant. I consider she is simply mistaken in her view, although she may have convinced herself that her workload was excessive.
This undermines the opinion of Professor Davis, insofar as he asserts that the Applicant’s bilateral CTS has been brought on by the intensity of her work. I take up his concession and accept that, in light of my findings in relation to the Applicant’s work, his account is less compelling. I find that it is not compelling at all in the Applicant’s case.
The finding that the Applicant’s CTS was not brought on by her work is not to deny that the Applicant’s CTS is productive of pain and a source of discomfort. I am not satisfied, however, that in the Applicant’s case there is the connection required by the Act between her CTS and her work such as to satisfy me that her condition is a compensable ailment under the Act. I am not satisfied either that she has suffers an aggravation of an ailment under the Act which is compensable.
Her condition may well have become more painful by reason of her work, but it was not in my view made more painful by her work and this is a critical distinction
If the Applicant’s work did contribute to an aggravation of her condition, such aggravation would not, in my view, be to a significant degree.
In light of factors concerning the Applicant’s obesity and her gender, I am not in a position to say that her work would have contributed to the aggravation to a degree substantially more than material. That is to say, her work may have materially contributed to an aggravation of her CTS, if indeed it did contribute at all, but not to any extent (and not to a significant extent) beyond that degree. In that regard, I rely upon the evidence of Dr Reiter. I note that Professor Davis even indicated there were probably some constitutional factors, which have or may have also contributed to her condition. This means or would mean the Applicant’s CTS is not compensable under the Act on the alternative basis of an aggravation of an ailment either.
Conclusion
I am satisfied for the reasons I have given that the Applicant’s injury is not compensable. The decision under review must be affirmed.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member ...................................[sgd]....................................
Associate
Dated 17 May 2016
Date of hearing 11 April 2016 – 13 April 2016 Counsel for the Applicant Mr Ray Ternes Solicitors for the Applicant Shine Lawyers Counsel for the Respondent Mr Roy Seit Solicitors for the Respondent Sparke Helmore Lawyers
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