Edwards and Comcare (Compensation) - [2025] ARTA 571

Edwards and Comcare (Compensation) [2025] ARTA 571 (13 May 2025)
Applicant:Alana Edwards
Respondent: Comcare
Tribunal Number: 2023/4788

Tribunal:Senior Member D Thomae
Place:Brisbane
Date:13 May 2025

Decision: The Tribunal affirms the decision under review.

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Statement made on 13 May 2025 at 4:11pm
CATCHWORDS
COMPENSATION – applicant lodged claim for workers’ compensation for ‘de Quervain’s Tenosynovitis’– respondent denied liability pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) – consideration of conflicting expert medical evidence – relevance of Repatriation Medical Authority statement of principles to the SRC Act - affirm decision
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Veterans’ Entitlement Act 1986 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Cases
Comcare v Power [2015] FCA 1502
Commonwealth of Australia v Beattie [1981] FCA 88
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Re Commonwealth Banking Corporation v Percival [1988] FCA 240
Vivian and Military Rehabilitation and Compensation Commission [2005] AATA 875
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
Secondary Materials
Statement of Principles concerning de Quervain Tendinopathy – Instrument no. 41 of 2019
Statement of Reasons

INTRODUCTION

The applicant, Ms Alana Edwards (Ms Edwards), made an application for review[1] to the General Division of the Administrative Appeals Tribunal (the AAT)[2] of the decision by Comcare, affirming its determination denying liability for what was described as ‘de Quervain’s Tenosynovitis’ (de Quervain’s) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
[1] Exhibit R15.
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Ms Edwards seeks the Tribunal to set aside Comcare’s determination and vary it so that she is entitled to compensation pursuant to s 14 of the SRC Act.
At the hearing Ms Edwards gave evidence. Ms Hamer of the Defence Housing Authority (DHA) also gave evidence. Dr Simon Journeaux, an orthopaedic surgeon; and Dr Simon White, an occupational physician gave evidence. Ms Edwards was self-represented. Comcare was represented by Mr Phil Nolan of counsel, instructed by HBA Legal.
The Tribunal admitted into evidence the exhibits which are listed in the annexure to these reasons.

BACKGROUND

Ms Edwards was employed by the DHA in a call centre as a ‘Housing Contact Centre Consultant’. That role required Ms Edwards to answer phone calls, process emails, perform data entry and allocated tasks using the DHA workflow…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Edwards and Comcare (Compensation)

Details

AGLC: Edwards and Comcare (Compensation) [2025] ARTA 571
Case: [2025] ARTA 571
Decision Date: 13 May 2025

CaseChat Overview and Summary

The applicant, Ms Edwards, sought workers' compensation from Comcare for an injury she claimed was sustained during her employment with the Department of Home Affairs (DHA). The injury in question was de Quervain’s tenosynovitis, a condition affecting the tendons in the wrist and thumb. Comcare denied liability for the injury under Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute centred on whether Ms Edwards' condition was an injury arising out of and in the course of her employment, as defined by the Act, or if it was caused by other factors such as her age, gender, or other non-work-related activities.

The key legal issues before the court were whether Ms Edwards suffered from an 'ailment' or an 'aggravation of an ailment', and if this condition was significantly contributed to by her employment with DHA. The court needed to assess the medical evidence presented by both parties and determine if the condition was a disease within the meaning of the SRC Act. Additionally, the court considered the relevance of the Repatriation Medical Authority statement of principles to the SRC Act.

The court found that Ms Edwards' condition of de Quervain's was not contributed to a significant degree by her employment with DHA. The reasoning was based on several factors including the duration of her employment, the nature of her tasks, any predisposition to the condition, and other activities or factors affecting her health. The court accepted the medical evidence provided by Dr Journeaux and Dr White, which contradicted the opinion of Dr Morse, as it was consistent with the medical articles that did not support the occupational factors claimed by Ms Edwards. The court concluded that while Ms Edwards' role involved repetitive tasks, the evidence did not support the conclusion that her employment was a significant contributing factor to her condition. The court found that the condition was more likely caused by 'constitutional' factors, such as her age and gender.

In light of the above, the court affirmed Comcare's decision to deny liability for Ms Edwards' claim. The decision was based on the weight of the evidence, which did not support that Ms Edwards' employment with DHA was a significant contributing factor to her de Quervain's tenosynovitis.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During the hearing Ms Hamer gave evidence on the calculation of breaks taken by Ms Edwards from the data collected by the DHA in its ‘presence reports’[14]. The Tribunal questioned the methodology used by Comcare in selecting a particular period of time to demonstrate that Ms Edwards had a number of short breaks per day that might be inconsistent with her evidence. When pressed, Comcare conceded that it was of ‘peripheral relevance’ and did not take the Tribunal to a consideration of the veracity of Ms Edwards evidence.MEDICAL EVIDENCE[14] Exhibit R7.Ultrasound and Xray Evidence On 4 August 2022, Dr Bilal, a radiologist, provided a report of an ultrasound of Ms Edwards’s right wrist that opined:[15]There is no compression of median nerve in the carpal tunnel. There is however thickening of the tendon sheath of exterior pollicis longus and extensor pollicis brevis with a trace of fluid, consistent with de Quervain’s tenosynovitis. This would be relevant if the patient has ongoing tenderness as well. Mild arthritic changes are suspected along the 1st CMC joint.[15] Exhibit A2. On 14 November 2023, Dr Bilal, provided a report[16] of an MRI of Ms Edwards’s right wrist and thumb that opined that mild de Quervain’s tenosynovitis was seen, there was a tiny ganglion cyst present. He diagnosed mild de Quervain’s tenosynovitis, dorsal intercarpal ligament sprain, mild tenosynovitis of extensor carpi ulnaris in the right wrist. In the right thumb he diagnosed mild osteoarthritis changes involving the 1st CMC articulation.[16] Exhibit A23.Dr Amanda Thompson – Occupational Therapist Dr Thompson, an occupational therapist, provided a letter to Ms Edwards’s general practitioner (GP) Dr Garcia, dated 22 August 2022, that states:[17] Alana self referred to our clinic reporting an approximate 2 week history of right wrist pain, which she reports coincides with a recent change in desk at work. Ultrasound imaging identifies right wrist “de Quervain’s tenosynovitis”.Alana attended for initial review in our clinic on 12/08/2022. She reported symptoms of pain in the “top” of her wrist (over 4th dorsal compartment) with typing and pain at the thumb side of wrist (1st dorsal compartment) with mouse work. Clinic testing indicates 1st and 4th dorsal compartment tendonitis. I have fabricated a wrist and thumb immobilisation orthosis and advised Alana to wear this full time for a period of 4-6 weeks; following this we will assess readiness to wean from the orthosis and commence strengthening and work hardening.[17] Exhibit A4. On 20 December 2022, Dr Thompson provided a report that opined that clinical testing was positive for de Quervain’s tendinosis and for intersection syndrome and 4th dorsal compartment tendinopathy. Dr Thompson believed that Ms Edwards employment duties of repetitive phone, keyboard and mouse use significantly contributed to her condition.[18][18] Exhibit A5. Dr Thompson did not give evidence at the hearing.Dr Simon White – Occupational Physician

Decision

Reasons for decision

On 15 June 2023, Comcare affirmed its determination dated 30 January 2023 (the Reviewable Decision)[8].[8] Exhibit R20. The Tribunal must decide whether Ms Edwards suffered an ‘injury’ giving rise to Comcare being liable for de Quervain’s pursuant to s 14 of the SRC Act:(a)Whether Ms Edwards suffered from an ‘ailment’ or an ‘aggravation of an ailment’ as defined in ss 4(1), 5A and 5B of the SRC Act.(b)If so, whether the ailment (or aggravation of an ailment) was ‘contributed to a significant degree’ by her employment with DHA and therefore a ‘disease’ within the meaning of the SRC Act. The SRC Act relevantly provides:4 Interpretation(1) In this Act, unless the contrary intention appears:aggravation includes acceleration or recurrence.ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).…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.…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. There is little in factual dispute in this matter. The evidence of Ms Edwards was not seriously contested at the hearing. Nor was the evidence of the DHA lay witness, Ms Hamer, of significant probative value other than to provide the policy framework for Ms Edwards’ employment at DHA. Insofar as there is a contradiction, it is in the medical evidence and even then, it is of narrow distinction as to the opinions of the medical experts relied upon by the parties as to the causation of Ms Edwards condition of de Quervain’s. Ms Edwards Ms Edwards provided a ‘statement of evidence’, undated, that relevantly states[9]:[9] Exhibit A1.(a)Ms Edwards was employed with DHA as a Housing Contact Centre Consultant from 12 July 2021 to 12 December 2022.(b)The role involved significant periods of keyboard data entry and mouse work, both of which required repetitive wrist and thumb movement.(c)After a desk move in March 2022 she started having wrist pain.(d)Between April and August 2022, Ms Edwards sought to alleviate symptoms by purchasing and ergonomic mouse and mousepad, after unsuccessfully seeking to obtain these via DHA.(e)On 3 August 2022, Ms Edwards was in significant pain and unable to report to work, she reported the wrist pain to DHA. Ms Edwards sought medical treatment on 3 August 2022, including obtaining an ultrasound on the following day that had a diagnosis of de Quervain’s.(f)On 11 August 2022, DHA approved treatment through the ‘Early Intervention Support Subsidy’, enabling immediate medical treatment of 2 general practitioner and 5 physiotherapist appointments.(g)On 15 August 2022, DHA provided a third party to conduct a workstation assessment. (h)On 7 December 2022, she lodged the Claim.(i)On 12 December 2022, she commenced employment with Defence Travel Services.(j)In December 2023, she recommenced wearing a wrist brace at work due to increased wrist pain and continued to wear the brace at night during the Christmas stand-down period. She experienced a decrease in symptoms during her absence from work.(k)She concludes:It remains my strong belief that I suffered a work injury (de Quervain’s tenosynovitis) as a result of my DHA work duties. I had never experienced the symptoms of wrist or thumb pain prior to commencing employment with DHA, and the symptoms gradually increased in nature, forcing me to seek treatment on 3rd August 2022. I believe that the timings of onset and gradual increase in my symptoms, together with the fact that these same symptoms would decrease during periods away from my work duties, is clear evidence of the work-related causation. Furthermore, this is supported by my treating Orthopaedic Surgeon, Dr Levi Morse, who in all his correspondence has confirmed the diagnosis of de Quervains tenosynovitis and attributed the condition to repeated actions within my work duties (i.e. mouse work and data entry).

Ratio Decidendi

Legal Principle Established

The list is non-exhaustive, and s 5B(2) specifically provides that the matters listed do ‘not limit the matters that may be taken into account’.Duration of employment with DHA Ms Edwards worked at DHA for approximately 18 months in the same role. The onset of her symptoms started approximately 7 months after she commenced. Her employment history did not include a role commensurate with the type of role she had at DHA. The Tribunal is not reasonably satisfied that her duration of employment with DHA significantly contributed to her de Quervain’s.Nature of tasks involved in employment with DHA The Tribunal accepts Ms Edwards evidence in respect to the sustained and repetitive nature of her data entry, keyboard and mouse usage at DHA. The detailed evidence provided by DHA recording her performance and activity in her call centre role corroborated her evidence. The Tribunal is also satisfied that DHA did not enforce its policies in respect to breaks and failed to properly monitor Ms Edwards through a workplace health and safety focus rather than compliance with key performance indicators. However, whilst Ms Edwards duties at DHA were repetitive and sustained, they were not the type of occupational factors that the medical journals relied upon by the parties, namely the use of significant force and awkward postures in the wrist that are connected with de Quervain’s. The Tribunal is not reasonably satisfied that the nature of Ms Edwards’s role with DHA over the relatively short period of approximately 18 months has materially contributed to her de Quervain’s.Any predisposition of Ms Edwards to Quervain’s Ms Edwards is 51. The Tribunal is reasonably satisfied that the medical evidence shows that Ms Edwards had by her age and gender a predisposition to de Quervain’s. Her work history prior to DHA has been in other administrative roles where she used keyboards and a mouse, albeit not to the same intensity and duration as in her role at the DHA and are not likely to have contributed to her de Quervain’s.Any activities of Ms Edwards not related to her employment with the DHA The Tribunal was not satisfied that any other activities undertaken by Ms Edwards, including her gym workouts, during her employment with DHA, had any adverse impact on the path of her de Quervain’s.Any other matters affecting Ms Edwards’s health Ms Edwards had no significant comorbidities that would contribute to her condition.Conclusion The Tribunal is reasonably satisfied that Ms Edwards condition of de Quervain’s was not contributed to a significant degree by her employment with DHA, because:(a)The Tribunal finds that de Quervain’s is a degenerative disease of the tendon sheaths in the wrist that is more prevalent in women over 30.(b)The Tribunal accepts the opinions of Dr Journeaux and Dr White, insofar as they differ from Dr Morse, in respect to Ms Edwards condition of de Quervain’s not being caused by her employment with DHA, as that is consistent with the medical articles relied upon by Ms Edwards and Comcare that do not provide the occupational factor supporting her contention.(c)Even if Ms Edwards employment with the DHA contributed to her condition of de Quervain’s it was not to the standard required by s 5B of the SRC Act, because the weight of evidence does not support that conclusion, particularly the requirement of force and awkward postures in the use of her wrist.(d)Based on the medical evidence, Ms Edwards age and gender made her predisposed to de Quervain’s.(e)The duration of Ms Edwards employment with DHA was for a relatively short period of approximately 18 months. (f)There was no medical evidence of aggravation of a pre-existing condition of de Quervain’s and in any event, consistent with the reasoning by the Full Court in Commonwealth v Beattie[39], it is not enough that if her de Quervain’s had been a pre-condition that her role with DHA caused an aggravation.(g)The Tribunal is reasonably satisfied that it is more likely that Ms Edwards condition of de Quervain’s was caused by ‘constitutional’ factors as opined by Dr Journeaux and Dr White.[39] (1981) 35 ALR 369 at 378.