EDWARD LOBENDAHN and TELSTRA CORPORATION LIMITED
[2009] AATA 808
•21 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 808
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3288
GENERAL ADMINISTRATIVE DIVISION ) Re EDWARD LOBENDAHN Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr J D Campbell, MemberDate21 October 2009
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the reviewable decision of 24 October 2007 and remits this matter to the Respondent with the direction that the Applicant is entitled to compensation for the work-caused injury of bilateral carpal tunnel syndrome. The Respondent is to pay the Applicant’s costs.
...................[sgd]......................
Ms N Isenberg
Senior Member
CATCHWORDS
Workers’ Compensation – Bilateral carpal tunnel syndrome – whether condition arose out of, or in the course of Applicant’s employment with the respondent – whether condition was contributed to, to significant degree by Applicant’s employment with the Respondent – whether the Respondent is liable to pay compensation in respect of the condition – the decision under review is set aside and remitted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 5B, 7, 14,
CASE LAW
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISION
21 October 2009 Ms N Isenberg, Senior Member
Dr J D Campbell, MemberIntroduction
1. Mr Lobendahn is an employee of the Telstra Corporation Limited (‘Telstra‘) and is currently 47 years old.
2. On 27 April 2007, he lodged a Claim for Rehabilitation and Compensation in respect of carpal tunnel syndrome allegedly sustained on 22 April 2007 as a result of repetitive work with hands and arms. By determination dated 26 June 2007, Telstra denied liability for the claimed carpal tunnel syndrome on the basis that it was not related to Mr Lobendahn’s employment with Telstra. By reviewable decision dated 24 October 2007, the determination of 26 June 2007 was affirmed.
Issues For Determination
3. As there was no dispute that Mr Lobendahn suffers from bilateral carpal tunnel syndrome, we have had to decide:
·Whether the claimed condition arose out of, or in the course of, Mr Lobendahn’s employment with Telstra.
·Alternatively, if it is a disease, whether the claimed condition was contributed to, to a significant degree, by Mr Lobendahn’s employment with Telstra.
·Whether Telstra is liable to pay compensation to Mr Lobendahn for the claimed condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
Legislative Framework
4. The relevant legislation in this matter is the SRC Act, in particular section 14 which provides that compensation is payable in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Evidence of Applicant
5. Mr Lobendahn gave evidence that he had worked most of his life in the construction industry before joining Telstra in 1995. In 1993 he had experienced sore elbows while using an impact drill which had settled with the use of anti-inflammatories.
6. Mr Lobendahn outlined his responsibilities for erecting and maintaining Telstra towers around Australia, including installing antennae, which are pre-assembled, and dishes, which are built on site. He drives up to 100,000kms a year and liaises with various service providers while driving so that the work can proceed upon arrival. His usual hours are from 7am until 4:10pm, with half an hour for lunch, and up to two hours per day regular overtime so as to utilise daylight hours. A large job, such as a mast may take a month and a 50-metre tower may take six to eight weeks to complete, of which about two to three weeks would be work at ground level.
7. He said that much of the tower work was at heights of between 10 and 150 metres. He would climb the structure carrying his tool kit, weighing about 12 kilograms, ropes, cabling and wearing a heavy full body harness. Access to some areas requires him to abseil into position, gripping an ‘ascender’. On the tower he would manoeuvre between areas by climbing across the latticework via ‘step bolts’. He would haul himself between levels by use of a carabineer - a ‘scissor-hands’ which clips onto the step bolts. The scissor-hands required constant clipping and unclipping using his whole hand. When climbing a hundred metre tower, the scissor-hands is clipped and unclipped onto a step bolt which are spaced at every 300 millimetres.
8. Materials to be used up the tower are hand winched into position, using a single block and tackle at either end, and a 16 millimetre rope. He gave an example of lifting a 60 kilogram pipe which might have to be winched 100 metres up a mast, with him gripping the rope. Sometimes he will carry the cable himself, secured to his harness, and a small 8 millimetre rope of about 40 metres. He explained that that would be the ‘crew’ rope, and then another rope would be used to pull up other equipment. He described hauling between four and 36 cables into place per mast. They are unwound from a cable drum at the base of the mast, and then hauled up individually using a 16 millimetre hauling rope. There is pressure on his hands in struggling to pull the cable off the unmotorised drum and then hauling them up the mast. Sometimes cherry pickers would be used to access Telstra mobile phone base stations which are a cylinder pole as they are smooth and do not have step bolts. The cherry picker only provides access to the area, and then the necessary equipment still has to be hauled up.
9. Rigging wire, which ranges from 13 millimetres to 26 millimetres in diameter, is cut with a nine inch electric grinder, and wires are pulled up the tower by hand or by winch, depending on how heavy they are. They are secured with nuts and bolts which are tightened up with large shifting spanners to get the recommended tension for that type of structure. Three men ‘fight’ the cable, and this requires force to maintain the tension. Nuts are twisted manually down the tension rod and then tension bolts are secured by using either one or both hands as necessary to operate a 12-inch to a 21-inch shifting spanner. This requires a lot of force.
10. He described having to use pliers with both hands to cut up to 100 or more plastic-coated copper cables ranging in size from up to 200 millimetres in diameter thick. Some cables could only be accessed by awkwardly extending his arms. Sometimes he will be working at about shoulder level, while other times he may be laying almost horizontal trying to get to a confined work area. Twisting and lifting tools in awkward positions is particularly difficult.
11. Affixing the cables to the gantry requires force using a hand held machine - a panduit gun to tighten the stainless steel cable ties. He uses a trigger motion with his right hand, with the machine often set on ‘heavy’. There are six metre lengths of plates and these might have to be hauled up to 100 metres.
12. He described the use of a podger - a 20 or 30cm long spiked tool with a spanner on the end which is rotated. He also used a ‘drift’, which is similar to a nail punch, to line up holes, and this required a gripping motion with his left-hand. A mallet was used to punch it into place. He would be suspended while attaching the nuts and bolts with his left-hand on the backing plate, and putting in the bolts through from one side to another through 3 pieces of metal. Initially he would hand thread the nuts and bolts into place with one hand on the bolt and one hand on the nut. Then he would use a ratchet socket spanner or a shifter with some force. There might be four to 16 bolts per plate.
13. He described the earthing of cables, which required individual cables to be stripped of a section of the outer-jacket with a knife, exposing the copper wire. The wires are crimped, and he demonstrated a motion like using a garden shear or bolt cutters using force to crimp the 35 sqm lugs.
14. He also described having to push and pull cable through a narrow conduit – ‘a real cow of a job’ that involves much pressure on his hands and wrists.
15. When building towers, he and his team would commence excavation for the contractors. There is usually a crowbar and jackhammer job to ‘bell’ out of the bottom of the hole to a depth of up to 2.4 metres. This also includes soil removal. The team also makes formwork, adjusting the anchor points before the concrete pour. There is also some steel reinforcement and they construct a ‘cage’ and this includes tightening of the joints by hand. The cage is constructed on the surface and lowered by hand into the hole. After the concrete is poured they use a two-inch diameter industrial vibrator to vibrate the concrete to help it settle. He said it is very difficult to control.
16. Dismantling towers or retrieving equipment was also difficult as old nuts and bolts may have seized up and it is difficult to access them using grinders. ‘Flogging’ spanners, are used whereby the bolt is held in place and a hammer is used to try to remove it. Sometimes the task seems ‘impossible’, because of the awkward positions. Disconnecting wiring is similarly problematic.
17. In maintaining the towers, they will climb the structure on all sides - inside and out - to do maintenance, such as wire brushing to get rid of surface rust. This requires some force to scrub off the surface rust.
18. Whatever work can be done at ground level is easier, but it is limited.
19. Mr Lobendahn said that on 28 April 2007 he attended his GP, Dr Nguyen complaining about pain, numbness, tingling, which caused him to wake at night. He had first noticed pain in his hand and then his forearms. His arms were numb if he had to climb to 80 metres. These symptoms had commenced about four to six months beforehand but were becoming more painful and more persistent. Dr Nguyen prescribed a course of antiinflammatories and sent him to a hand and wrist surgeon, Dr Yee whom he saw on 26 July 2007. He was put on restricted duties: basically no climbing for 2 months. There was some easing of his symptoms during that time.
20. On return to full duties his symptoms increased. He said that climbing is the worst activity. He described three different sensations while climbing: pain, numbness and tingling. After climbing 20 metres, for example, he is unable to feel his hands up to his elbows, and there is pain. He flaps his arms around to get some circulation back in his hands, and can then continue. Recent hole-digging using a crowbar caused his arms to feel painful. Using the ratchet to tie up nuts and bolts, and terminating cables also caused pain, but then, he said, just about everything he does at work causes pain and numbness as if the hands have no strength.
Medical evidence
21. Dr Tan Nguyen, Mr Lobendahn’s GP recorded on 22 April 2007 that Mr Lobendahn attended complaining of ‘sore wrists with numbness on and off for 12 mths, job involved climbing. Tightening nuts’. He prescribed Voltaren tablets. By medical certificate of the same date, Dr Nguyen certified Mr Lobendahn fit for full-time pre-injury duties, noting the diagnosis as '?carpal tunnel syndrome' and that the cause was 'repetitive using of both hands', which was considered to be work-related. On 9 August 2007, Mr Lobendahn attended again and Dr Nguyen recorded that Mr Lobendahn had been advised by the ‘work doctor’ to avoid climbing. On 14 November 2008, Dr Nguyen reported that Mr Lobendahn’s employment had been a major contributing factor to his bilateral carpal tunnel syndrome. The doctor considered that the duration of Mr Lobendahn’s employment combined with the repetitive nature of his duties contributed to Mr Lobendahn’s condition.
22. Nerve conduction studies were performed by Dr Shareef Dowla. A report dated 21 May 2007 revealed a strong electroclinical correlation for carpal tunnel syndrome bilaterally.
23. On 26 July 2007, Dr David Yee, Hand and Wrist Surgeon, noted that Mr Lobendahn’s symptoms of tingling and numbness in both hands commenced in or around March 2007. He diagnosed Mr Lobendahn as suffering from ‘severe carpal tunnel syndrome on both sides’, and noted that his employment had been a ‘major contributing factor’. He noted that Mr Lobendahn required surgical carpal tunnel releases bilaterally to treat the condition.
24. In his report of 15 October 2008, Professor Philip Sambrook, Rheumatologist, diagnosed Mr Lobendahn with bilateral carpal tunnel syndrome, worse on the left than the right. He referred to the 1998 meta-analysis entitled Meta-analysis of Published Studies of Work-related Carpal Tunnel Syndrome[1] by Abbas and others which concluded that force and repetition were significant risk factors for carpal tunnel syndrome. Based on the nature of Mr Lobendahn’s duties, as well as on the literature, and more specifically on the meta-analysis, the Professor opined it was more likely than not that Mr Lobendahn’s employment had been a significant contributing factor to his carpal tunnel syndrome.
[1] Abbas M et al, ‘Meta-analysis of Published Studies of Work-related Carpal Tunnel Syndrome’ (1998) 4 International Journal of Occupational and Environmental Health 160, 160-167.
25. In his evidence Professor Sambrook confirmed that in forming his view he did not proceed on the basis that Mr Lobendahn spent his entire working day doing forceful and repetitive activities. Mr Lobendahn had no other risk factors by the literature for the development of carpal tunnel syndrome. These include constitutional factors such as being menopausal, hypothyroidism, rheumatoid arthritis or trauma such as a fracture. Even if there were a constitutional element, Professor Sambrook considered Mr Lobendahn’s work as making a significant contribution to his condition.
26. As to the variety of views expressed in the literature in relation to the connection between work and carpal tunnel syndrome, Professor Sambrook explained that the best way to summarise the literature on a medical issue, is by way of meta-analysis. A meta-analysis, he said, occurs when the authors examine the findings of a large number of studies, both positive and negative. He observed that there is diffuse opinion in the occupational literature.
27. Professor Sambrook agreed that the authors were looking for information about repetition and force. They recorded information about repetition of force, and then they did an analysis to see if it was statistically significant, and they found it was statistically significant and thereby concluded it was a risk factor. The meta-analysis did not address what degree of repetition was required to be a significant risk factor, nor how much force was actually required.
28. A meta-analysis is superior to systematic review such as the more recent Palmer[2] review but both had concluded, based on the whole of the literature that they reviewed that there was a relationship between carpal tunnel syndrome and force and repetition at the wrist including when there was evidence of forceful grip.
[2] Palmer K, Harris E and Coggon D, ‘Carpal Tunnel Syndrome and its Relation to Occupation: A Systematic Literature Review’ (2007) Occupational Medicine 57,57-66.
29. Professor Sambrook observed that the systematic review by Palmer[3] tended to address that issue, referring to substantially more than a doubling of risk where repetitive wrist movements occupy a major part of the working day, such as repeated palm flexion and extension of the wrist, every 30 seconds or more often, for at least 20 hours per week. He observed that the review found that repeated flexion and extension of the wrist, more than doubled the risk of carpal tunnel syndrome. Three studies pointed to wrist flexion or extension for at least half the working day, as carrying a particularly high risk. He referred to the Silverstein[4] study which spans several industries and included video taping job analysis, reported associations both with repetitive and with forceful hand wrist-work. For repetitive work including hand-wrist flexion and extension as defined by a cycle of less than 30 seconds, or greater than 50 per cent of the cycle time involved in performing the same activities, there was a 2.7-fold increase for workers in a low-force job and a 15.5-fold increase for those in high-force jobs, where the hand grip was greater than 4 kilograms.
[3] Ibid.
[4] Silverstein B, Fine J and Armstrong T, ‘Occupational Factors and Carpal Tunnel Syndrome’ (1987) 11(3) American Journal of Industrial Medicine 343, 343-358.
30. Professor Sambrook was asked to identify the tasks described to him by Mr Lobendahn which fall within that description. Climbing a tower was one such task requiring repetitive flexion and extension of the wrist, as well as forceful grip.
31. Based on the literature, Professor Sambrook formed the view that Mr Lobendahn’s use of pliers, and other tools involved a constant repetitive flexion or extension of his wrist and forceful grip required, and involved a twisting motion of the forearm, using fingers or thumb on pressing tool, using a pinch grip and forceful gripping. He also considered it relevant that Mr Lobendahn had to undertake those duties at awkward positions while harnessed up the tower. He observed that climbing involved considerable repetitive flexion and extension of the wrists.
32. Professor Sambrook agreed that if an individual has idiopathic carpal tunnel syndrome, they may experience symptoms on performing certain sorts of movements, and if a person has a constitutional predisposition to carpal tunnel syndrome and then started doing forceful repetition, the symptoms would get worse. An employee who has a constitutional carpal tunnel syndrome and tries to carry out an activity that stresses the carpal tunnel may report symptoms, and there may be a temporary or a permanent aggravation. Not all people with constitutional carpal tunnel syndrome however actually have symptoms.
33. He was referred to the view expressed by Dr Potter in his report of 19 June 2007 to the effect that there is no medical consensus as to the causes of carpal tunnel syndrome. Professor Sambrook described Dr Potter’s view as ‘fairly dogmatic’.
34. Professor Sambrook conceded that the Abbas[5] meta-analysis is not proof that there is a causal relationship, between force/repetition and carpal tunnel syndrome only an increased risk of carpal tunnel syndrome.
[5] Abbas M et al, above n 1.
35. In his report of 19 June 2007, Dr Stephen Potter, Rheumatologist, diagnosed
an uncomplicated carpal tunnel syndrome, symptomatically on both sides, onset April 2007, somewhat gradual.
The doctor commented that:
it can not be stated on the available evidence that the work place is or was the most substantial contribution to the current pathology.
The doctor commented that:
although genuine, [the claimed condition] is not related to the work place. It follows therefore any colleague suggesting otherwise should provide you with the relevant literature to establish a clear cut cause and effect link and none such exists.
He noted that Mr Lobendahn plays no vigorous sport or hobbies relevant and, therefore, the syndrome is probably idiopathic. The doctor provided a number of articles to supplement his report, indicating that the assumption that carpal tunnel syndrome is generally caused by work-related factors is generally incorrect. Dr Potter based his opinion on material dating from 1998 to 2006.
36. Dr Potter said in his evidence that because a problem develops at the workplace does not mean it is caused by the workplace. As to why he looked at whether Mr Lobendahn had any vigorous sports or hobbies he said he was aware of the tradition that he should approach this looking for all the ‘maybes’ that occur.
37. He explained that his description of Mr Lobendahn’s condition as ‘constitutional’ relates to him not knowing what caused the condition, as opposed to there being something inherent in Mr Lobendahn’s make up that has caused the condition. He had eliminated other causes such as playing vigorous sport or other hobbies, having a family history of carpal tunnel syndrome, significant weight change or known thyroid disease.
38. Dr Potter professed an interest in looking at the literature in this area for the last eight years. He said he had not been familiar with the Abbas[6] meta-analysis until recently. He considered the reference there to ‘risk factors’ as merely that the authors were looking at potential causes of a condition. He thought there were several problems with the paper. Firstly he thought it had been done by mathematicians although he later conceded that Abbas was medically qualified. It was more troublesome, he said, that they only studied people they considered to have work-related carpal tunnel syndrome and they had preconceived ideas as to the outcome. While meta-analyses are the best study, he regarded the Abbas[7] meta-analysis as ‘a soup’, in that it may have relied on flawed papers.
[6] Abbas M et al, above n 1.
[7] Ibid.
39. He was similarly critical of the Palmer[8] systematic literature review.
[8] Palmer K, above n 2.
40. He reiterated his view that on the available data there is no evidence that the progressive form of carpal tunnel syndrome, as opposed to a trauma, is a work-related phenomenon. He agreed though that he had expressed the view in his 2004 report that on his review of the data there was a suggestion that use of vibrating tools might be an aggravator, that is, the nature of the work might have, for a period of time, made that process a bit worse. However he considered that more data has become available, and that proposition has become ‘less proven’, or ‘less absolute’. He referred to an ‘avalanche’ of material.
41. For example, he referred to an editorial by Helliwell[9] which he agreed was only an opinion piece which related to diffuse upper limb disorders, as opposed to a carpal tunnel syndrome specifically and concluded that further study was required. Another editorial by Yocum[10] in 1998 also suggests there should be further study, as did another editorial by Coggon, Palmer and Walker-Bone[11] in 2000.
[9] Helliwell P, ‘Psychosocial Factors in Diffuse Upper Limb Disorder’ (2003) 30(1) Journal of Rheumatology 7,7-9.
[10] Yocum D, ‘The Many Faces of Carpal Tunnel Syndrome’ (1998) 158 Archives of Internal Medicine 1496.
[11] Coggon D, Palmer K and Walker-Bone K, ‘Occupation and Upper Limb Disorders’ (2000) 39 Rheumatology 105, 105-109.
42. Palmer[12] in fact undertook a systematic literature review of studies in 2007 but Dr Potter considered the study to be biased. He was critical of the methodology of starting out to study work-related pathology.
[12] Palmer K, above n 2.
43. He agreed that a meta-analysis is to look at both positive and negative responses to a question such as whether carpal tunnel syndrome is work-related but considered the Abbas[13] and Palmer[14] studies did not because they chose to look only at one causation. He considered there was no data in the last 10 years that concludes there is a work-related pathology.
[13] Abbas M et al, above n 1.
[14] Palmer K, above n 2.
44. An editorial by a Dr Hadler[15] was discussed, in which there was nothing as to whether carpal tunnel syndrome is work-caused, one way or the other.
[15] Hadler N, ‘Carpal Tunnel Sydnrome, Diagnostic Conundrum’ (1997) 24 Journal of Rheumatology 417, 417-418.
45. A 2002 article by Faulkner and Myers[16] was discussed in which they concluded that the cause of carpal tunnel syndrome, is multifactorial, with work being one factor. It was noted there that a lot of people claim that incorrect posture on keyboards has caused problems but Dr Potter would not accept that proposition as he had no evidence to prove it. The evidence for the moment on that particular subject indicates that keyboard activities and typing and office work are not known causes of carpal tunnel syndrome.
[16] Falkiner S and Myers S, ‘When Exactly Can Carpal Tunnel Syndrome Be Considered Work-related?’ (2002) 72 ANZ Journal of Surgery 204, 204-209.
46. Dr Potter did not accept that there were any circumstances where carpal tunnel syndrome can be work-related.
47. The Graham[17] article makes no comment one way or the other as to whether carpal tunnel syndrome is work-related.
[17] Graham B, ‘The Diagnosis and Treatment of Carpal Tunnel Syndrome’ (2006) 332 BMJ 1463, 1463-1464.
48. The Katz and Simmons[18] article was directed towards treatment and contains nothing about risk factors or causation, other than suggesting that patients minimise forceful and risk activities at home and work, because those activities increase carpal tunnel sydrome and exacerbate their symptoms.
[18] Katz J and Simmons B, ‘Carpal Tunnel Syndrome’ (2002) 346 (23) New England Journal of Medicine 1807, 1807-1812.
49. An article by Geoghegan[19] and others, which looked at the risk factors in carpal tunnel syndrome, was discussed. Employment was not considered in the list of variables.
[19] Geoghegan J et al ‘Risk Factors in Carpal Tunnel Syndrome’ (2004) 29 Journal of Hand Surgery (British and European Volume) 315, 315-320.
50. The next article referred to in evidence was by Stevens[20] and others regarding carpal tunnel syndrome in computer users at a medical facility. Dr Potter agreed the type of job had nothing to do with Mr Lobendahn.
[20] Stevens J et al, ‘The Frequency of Carpal Tunnel Syndrome in Computer Users at a Medical Facility’ (2001) 56 Neurology 1568, 1568-1570.
51. The next article referred to in evidence was by Becker[21] and others which contains no reference to the risk factors related to occupations, only other risk factors.
[21] Becker J et al, ‘An Evaluation of Gender, Obesity, Age and Diabetes Mellitus as Risk factors for Carpal Tunnel Syndrome’ (2002) 113 Clinical Neurophysiology 1429, 1429-1434.
52. An article by Bland[22] was subsequently referred to in evidence. It looked at obesity and age and carpal tunnel syndrome but had nothing to do with occupational risk factors.
[22] Bland J, ‘The Relationship of Obesity, Age, and Carpal Tunnel Sydnrome: More Complex Than Was Thought?’ (2005) 32 Muscle & Nerve 527, 527-532.
53. A 2006 article by Derebery[23] looked at risk factors, anatomic features, and ergonomic features including awkward posture, high repetition, high force and vibration, noting that to be considered significantly causative, high repetition, force, awkward posture and vibration exposure must all be present.
[23] Derebery J, ‘Work Related Carpal Tunnel Syndrome: The Facts and the Myths’ (2006) 5 (2) Clinics in Occupational and Environmental Medicine 353, 353-367.
54. In Palmer[24] it was observed that a long history of using hand held rotary tools increased the risk of carpal tunnel syndrome more than two-fold.
[24] Palmer K, above n 2.
55. A paper by Armstrong,[25] Risk Factors for Carpal Tunnel Syndrome and Median Neuropathy in a Working Population refers to a list of variables that were found to be statistically significant as risk factors for carpal tunnel syndrome. It concluded workers in construction trades are at an especially increased risk of carpal tunnel syndrome.
[25] Armstrong T et al, ‘Risk Factors for Carpal Tunnel Syndrome and Median Neuropathy in a Working Population’ (2008) 50 (12) Journal of Occupational and Environmental Medicine 1355, 1355-1364.
56. Dr Richard Honner, Orthopaedic surgeon provided a report dated 11 February 2009. There he reported that Mr Lobendahn suffers from constitutional bilateral carpal tunnel syndrome and did not consider this condition to have been caused or contributed to by Mr Lobendahn’s employment with Telstra. The doctor disagreed with Professor Sambrook's assertion that Mr Lobendahn’s claimed condition was due to his activities at work.
57. In his second report, dated 11 February 2009, Dr Honner provided further comments on material from Mr Lobendahn’s file. Dr Honner said he agreed with the opinion of Dr Potter as stated in his report dated 19 June 2007 and pointed out what he saw as weaknesses in the literature cited by Professor Sambrook to support his opinion.
58. In his evidence Dr Honner said he did not take a history of numbness from Mr Lobendahn, although he did get the history that his forearms and hands became very painful. He thought some of Mr Lobendahn’s pain in the forearm is muscle fatigue, and that it was also possible that his muscle activity is causing some swelling at the wrist, causing an increase in the pressure in the carpal tunnel, which results in his symptoms of carpal tunnel irritation of numbness and tingling. He thought the particularly vigorous activity that Mr Lobendahn does in climbing and pulling himself up the tower, probably causes muscle fatigue. He took a history that Mr Lobendahn would have to stop and rest, for up to six minutes at a time, and the pain would go away.
59. Dr Honner agreed that gripping by going up and down the tower was magnifying Mr Lobendahn’s carpal tunnel symptoms. He thought Mr Lobendahn’s carpal tunnel syndrome was constitutional in origin, by which he meant a combination of genetic and anatomical and inherent factors in his biological makeup that would cause him to develop a carpal tunnel syndrome at this time of his life, whether he was working or not, and whether he was climbing or not. He did not think that the work was just another factor on top of whatever his genetic makeup is because when he stopped and rested the symptoms settled.
60. Mr Lobendahn complained to Dr Honner especially about his climbing activities. Mr Lobendahn’s account of his climbing with the scissor-hands was described to the doctor and he agreed that that gripping activity is forearm muscle activity. He agreed that after a while it causes Mr Lobendahn pain and that it could produce some wrist swelling. Similarly, the work with different tools, with biomechanical use of the wrists, could also cause forearm muscle fatigue and also swelling in his wrist which caused him to get the numbness and tingling.
61. He thought that that additional force involved in cleaning rusty bolts and the like would just add to the extent of muscle activity, causing pain in the forearm.
62. He did not think that squeezing the panduit gun or using pliers, screwdrivers and spanners using the various tools would cause forearm muscle fatigue which in turn would cause swelling about his carpel tunnel, because that was not prolonged powerful forearm activity. Similarly he did not think that hauling ropes and wires was relevant. He observed that Mr Lobendahn was a rigger for 15 years before he started working for Telstra. However, Dr Honner came to the view that dragging himself up the towers was causing an increase in Mr Lobendahn’s symptoms.
63. He also thought it possible that the long distances driven by Mr Lobendahn, which involved gripping a steering wheel, could have aggravated the symptoms from his carpal tunnel syndrome.
64. He agreed that there is a wide variety of opinions expressed in the literature as to the association of a carpal tunnel syndrome with employment activity. He accepted that the nature of employment activity can cause an onset of a collection of symptoms in the carpal tunnel which can bring about permanent change in the physiology of the wrist.
65. However, it was Dr Honner’s view that in the absence of Mr Lobendahn doing the sort of work he has been doing, he probably would have developed a carpal tunnel syndrome at about this time of his life, because his condition is constitutional in origin. His opinion was that his carpal tunnel syndrome developed and was not related to his work, but in his work activities, he did do some things which made the symptoms worse. He did not think that climbing the tower makes a significant contribution to his symptoms. He thought Mr Lobendahn’s main complaint was forearm pain and he also got tingling and he would stop climbing and shake his hands. The tingling would go away and then after he had a rest, he would begin climbing again. He got the impression it was more the vigorous forearm muscle activity that caused his pain but he conceded it was possible that some of his symptoms could be due to swelling.
CONSIDERATION
66. There was no dispute that Mr Lobendahn suffers from bilateral carpel tunnel syndrome. The issue was whether Mr Lobendahn’s work at Telstra significantly contributed to that condition. The Respondent contended that the claimed condition is constitutional in nature, and it was therefore unrelated to Mr Lobendahn’s employment with Telstra. We do not agree.
67. Professor Sambrook, in his report dated 15 October 2008, opined it was more likely than not that Mr Lobendahn’s employment had been a significant contributing factor to his carpal tunnel syndrome. The Professor relied on the detailed history provided to him by Mr Lobendahn as well as on the Abbas[26] meta-analysis to reach this conclusion. Dr Yee, Mr Lobendahn’s Hand and Wrist Surgeon also considered that Mr Lobendahn’s employment with Telstra had been a major contributing factor, as did Mr Lobendahn’s GP, Dr Nguyen.
[26] Abbas M, above n 1.
68. We observe that Professor Sambrook was of the view that, in considering the relationship between work and carpal tunnel syndrome, the scientific literature was more important than the opinion of medical experts. We observe too, that specialists’ interpretation of the literature varies and may be influenced by matters such as their knowledge of the research methodology and their own clinical experiences. Dr Potter who took the view that in most studies referred to in the meta-analysis the authors were looking for a connection between work and carpal tunnel syndrome, and that it was inevitable that a connection would be found. We accept that some meta-analyses may be flawed because of publication bias in the literature. However we do not accept that criticism in this case, because it was equally open to the researchers, on making their enquiries, to find that the data in fact revealed no connection with work activities. Indeed, some of the research papers which they reviewed came to that view.
69. In the Palmer[27] document the authors concluded that there was reasonable evidence that regular and prolonged use of hand held vibratory tools increased risks of carpal tunnel syndrome two-fold and that prolonged and highly repetitious flexion or extension of the risk materially increases the risk of carpal tunnel syndrome, especially when combined with a forceful grip. They commented towards the end of their review that different studies defined repetitiveness in different ways. They reported that a possible option to resolve that discrepancy in the literature was, based on a conservative reading of the evidence, to define repetitiveness as every 30 seconds or more to be doing repeated palmar flexion and extension of the wrist. It seems quite clear that there were some activities of Mr Lobendahn’s at Telstra which required this type of palmar flexion and extension.
[27] Palmer K, above n 2.
70. Dr Potter quoted a large number of papers as supporting his counter view that carpal tunnel syndrome is invariably due to underlying constitutional conditions. He dismissed the findings of the Abbas[28] meta-analysis and Palmer[29] systematic literature review, but the papers upon which he relied were nearly all unhelpful to the matter at hand.
[28] Abbas M, above n 1.
[29] Palmer K, above n 2.
71. We prefer the evidence of Professor Sambrook that the Abbas[30] meta-analysis is the most reliable of the various epidemiological studies. The meta-analysis’ conclusion was that force and repetition were significant risk factors for carpal tunnel syndrome. Further, in someone who has a pre-disposition to carpal tunnel syndrome, repetitive activity can result in aggravation of the symptoms of carpal tunnel syndrome. We acknowledge that the presence of ‘risk factors’ is not a substitute for a cause. We observe, however that none of the other classic risk factors such as being menopausal, hypothyroidism, rheumatoid arthritis or trauma such as a fracture are present.
[30] Abbas M, above n 1.
72. For the purposes of the Act the contributing factor must be either an event or occurrence in the course of the employment or, as is relevant in this matter, some characteristic of the work performed or the conditions in which it was performed: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. What amounts to a “material contribution”, was further developed in Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15 (‘Sahu-Khan’), to which we were referred. In that case, Finn J at [12], endorsed the decision in Comcarev Canute (2005) 148 FCR 232, that the changes brought about by the enactment of the Act “were intended to require that the contribution be ‘more than a mere contributing factor’” and that the inclusion of the term “material” imposes an “evaluative threshold below which a causal connection may be disregarded”. Finn J concluded at [16] that the correct test for the application of the section 4 definition of “in a material degree” required “an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment” and that whether this will be so, in a given case, “will be a matter of fact and degree”. Since that decision the Act has been amended, requiring that the ailment be contributed to, to a significant degree, by the employment. ‘Significant degree’ is defined to mean ‘substantially more than material’.
73. Matters to be considered in this context are set out in section 5B(2) of the Act:
(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.
74. Duration: Mr Lobendahn had worked for Telstra undertaking his duties as a constructor operative or communication rigger since 1995.
75. Nature: Mr Lobendahn’s duties were largely repetitive in nature, and involve a lot of gripping. We especially note his use of the ‘scissor hands’ to climb communication towers. He also extensively used tools that required the application of force, often at awkward angles. He also hauled heavy equipment, shovelled and used vibrating machinery.
76. Predispositon: Dr Honner was of the opinion Mr Lobendahn’s carpal tunnel syndrome was due to constitutional factors and that it was very likely he would have developed carpal tunnel syndrome at that time of his life irrespective of his work. He conceded however that some of Mr Lobendahn’s pain in the forearm is muscle fatigue, and that it was also possible that his muscle activity is causing some swelling at the wrist, causing an increase in the pressure in the carpal tunnel. He thought the climbing and pulling himself up the tower, probably causes muscle fatigue. His use of the different tools could also cause forearm muscle fatigue and also swelling in his wrist, as did the work cleaning rusty bolts. He also thought it possible that the long distances driven by Mr Lobendahn could have aggravated his symptoms. He accepted that the nature of employment activity can cause an onset of a collection of symptoms in a carpal tunnel which can bring about permanent change in the physiology of the wrist.
77. Activites: there was no evidence of other relevant activities.
78. Other: Mr Lobendahn had been a rigger for 15 years before joining Telstra. His evidence was that in 1993 he had experienced sore elbows while using an impact drill which had settled with the use of anti-inflammatories. He had had no symptoms associated with his carpal tunnel.
79. We were reminded by the Respondent in submissions that the onset of Mr Lobendahn’s symptoms occurred in bed at night, and not at work. We find this to be of no consequence.
80. Mr Lobendahn gave evidence that after he ‘flaps’ his arms for a while the sensation in his hands returns after a few minutes and he can resume the duties. We were asked to infer that the episodes are transient, and therefore they are not bringing about any discernible change to the underlying condition. We do not agree. That he can continue in his duties after a few minutes does not, in our view, detract from his evidence of ongoing numbness, tingling and pain.
81. In accordance with Sahu-Kahn we have considered all the evidence before us and are satisfied, on balance, that Mr Lobendahn’s condition was contributed to, to a significant degree, by his employment with Telstra.
82. In reaching this conclusion, we have endeavoured to evaluate all the relevant contributing factors and have found evidence of no other cause of Mr Lobendahn’s ailment, bearing in mind his constitutional predisposition. We have taken into account Mr Lobendahn’s evidence, which we found to be straightforward and frank. We also took into account the medical evidence and all the epidemiological reference material before us in reaching our conclusion.
83. We are satisfied that the repetition and force used by Mr Lobendahn in his duties at Telstra was sufficient to cause or aggravate a carpal tunnel syndrome in someone who was constitutionally predisposed and that this link between the work activity and the ailment is clear.
84. We therefore find that the Respondent is liable to pay compensation to Mr Lobendahn for the claimed condition under section 14 of the SRC Act. Under section 7(4) the deemed the date of injury is 22 April 2007, the date Mr Lobendahn first consulted Dr Nguyen about his condition.
DECISION
85. The reviewable decision of 24 October 2007 is set aside and this matter remitted to the respondent with the direction that the applicant is entitled to compensation for the work-caused injury of bilateral carpal tunnel syndrome.
86. The respondent is to pay the applicant's costs.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER and DR J D CAMPBELL, MEMBER.
Signed: ...................[sgd].............................................................
AssociateDate of Hearing 8, 16 September 2009
Date of Decision 21 October 2009
Counsel for Mr Lobendahn Mr J Dodd
Solicitor for Mr Lobendahn Slater & Gordon Lawyers
Counsel for Telstra Ms R HendersonSolicitor for Telstra DLA Phillips Fox
SCHEDULE 1
87. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of “injury” contained within subsection 4(1) of the Act which states:
“ “injury” means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
5A(2)
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5BDefinition 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.
88. Section 14 of the Act deals with compensation for injuries and as relevant states:
“Compensation for injuries
14. (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.”
0
4
0