Electrolux Home Products Pty Ltd v Osborne
[2007] NSWWCCPD 95
•13 April 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Electrolux Home Products Pty Ltd v Osborne [2007] NSWWCCPD 95
APPELLANT: Electrolux Home Products Pty Ltd
RESPONDENT: Bronwyn Maree Osborne
INSURER:Self insured
FILE NUMBER: WCC11124-06
DATE OF ARBITRATOR’S DECISION: 13 November 2006
DATE OF APPEAL DECISION: 13 April 2007
SUBJECT MATTER OF DECISION: Carpal tunnel syndrome; injury; total or partial incapacity
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: McIntosh, McPhillamy & Co
ORDERS MADE ON APPEAL: The Arbitrator’s findings and determinations dated 13 November 2006 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 8 December 2006 Electrolux Home Products Pty Ltd (‘the Appellant Employer/Electrolux’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 November 2006.
The Respondent to the Appeal is Bronwyn Maree Osborne (‘the Respondent Worker/Ms Osborne’).
Ms Osborne was born on 19 September 1976. She started work with Electrolux in about October 1997 as a process worker. After working in various departments she was moved to the ‘door-foam’ department in about 1998. In this department her duties required her to build doors for fridges.
In about 2000 or 2001 she was moved to the ‘ice and water’ department (an area within the door foam department) where she lifted heavy fridge doors and wired parts of the fridge into position. This work required constant use of both hands. She also had to screw the ‘fascias’ onto the fridge doors. This job also involved “bashing components of the fascia hard” with her right hand while positioning it with her left hand (Ms Osborne’s statement 27 September 2006, paragraph nine). She said that she worked to a quota of 30-40 doors per day, but the Appellant Employer disputes this and suggests that the figure is closer to 20-30.
Some job rotation was involved but, according to Ms Osborne, each job she did was “repetitive, constant and fiddley” (Ms Osborne’s statement 27 September 2006, paragraph 10).
In early 2005 Ms Osborne noticed that both of her arms and hands started aching badly at the end of the day. In October 2005 she moved into the ‘high pressure foam’ department where, on the evidence in her statement at paragraph 13, her duties included the following repetitive activities:
a) book moulds (pushing and pulling with her hands);
b) cleaning cabs;
c) taping/bending pipes, and
d) ‘back panels’ (fitting metal panels to the back of fridges and striking them with her hands to ensure a correct fit).
Ms Osborne found the back panels job to be painful as it involved “banging metal on metal constantly” (Ms Osborne’s statement, paragraph 17). She reported problems in her arms and hands to the Appellant Employer’s first aid officer on 22 November 2005 and sought treatment from her general practitioner, Dr Leslie. She was prescribed Naprosyn and advised to do light duties with no lifting over five kilograms and no repetitive work. He provided a medical certificate diagnosing “regional pain syndrome –both arms –possible carpal tunnel syndrome [CTS] & tenosynovitis” and referred her to Dr Hammond for a nerve conduction study and to Dr King, general surgeon.
Electrolux provided light duties from 23 November 2005 and, on the same day, advised Ms Osborne by letter of an appointment with Dr Stapleton on 14 December 2005. Ms Osborne attended on Dr Stapleton and, according to her statement (paragraph 24), the doctor only saw her for “5 to 10 minutes”, mainly focused on her personal background, and did not ask much about her work.
By letter dated 22 December 2005 Electrolux disputed Ms Osborne’s claim on the grounds that her condition was not work related and that her employment was not a substantial contributing factor to her carpal tunnel syndrome, according to the opinion of Dr Stapleton in his report dated 15 December 2005 which was attached to the letter.
On 29 January 2006 Ms Osborne made a written request for light duties with Electrolux and identified two jobs she felt she could perform: taping in the high pressure foam section and peeling tape off doors. She also indicated her willingness to perform other duties as long as they were within the restrictions in her medical certificate.
A nerve study performed by Dr Hammond on 31 January 2006 confirmed bilateral carpal tunnel syndrome.
On 14 February 2006 Dr King wrote to Dr Leslie confirming the diagnosis of carpal tunnel syndrome and stating that the long-term solution was usually decompression surgery.
Ms Osborne performed light duties until 1 March 2006 when those duties were withdrawn. During her period on light duties she was given three notices headed “Disciplinary Procedure” for “absenteeism”. The first notice was described as “LEVEL ONE – FORMAL COUNSELLING”, the second “LEVEL TWO – FORMAL WARNING” and the third “LEVEL THREE – FINAL WARNING”. The second notice records “employee comments” as “my arms are sore”. The third notice recorded that “a doctors certificate was hand [sic] in” and that “my arms are sore”.
On 21 July 2006 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission in which Ms Osborne alleged injury to her wrists as a result of “the repetitive nature of her work with the Respondent”. She claimed weekly compensation from 22 December 2005 to date and continuing, lump sum compensation and medical expenses.
In its Reply filed on 10 August 2006 the Appellant Employer essentially denied that Ms Osborne had sustained any injury as alleged or at all and denied that the nature and conditions of her employment caused or contributed to any injury or condition suffered by her.
The Application was listed for hearing before a Commission Arbitrator on 18 October 2006 when Ms Osborne gave oral evidence and was cross-examined. In a reserved decision the Arbitrator found in her favour on all issues.
The Appellant Employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The parties concede that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant Employer submits that the appeal raises complex medical and legal issues and that both parties should be given the opportunity to be heard so that any specific concerns the Presidential member hearing the appeal may have can be addressed.
The Respondent Worker submits that no complex legal or medical issues arise, but if any issues trouble the Commission then she would want the opportunity to make oral submissions.
I do not believe the issues raised in this matter are so complex that an oral hearing is necessary. Each side has made detailed written submissions covering all relevant issues.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 November 2006, records the Arbitrator’s orders as follows:
“1.Respondent to pay $660.44 per week from 1 March 2006 to 30 August 2006, $347.90 per week from 1 September 2006 to 30 September 2006 and $354.40 per week (as adjusted) from 1 October 2006 to date and continuing pursuant to sections 36 and 37.
2.Respondent to pay the Applicant’s section 60 expenses.
3.Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the worker received an injury to her hands, wrists and arms arising out of or in the course of her employment as a process worker with Electrolux;
(b)finding that Ms Osborne’s employment was a substantial contributing factor to her injury;
(c)finding that Ms Osborne was totally incapacitated for work from 1 March 2006 as a result of her injuries;
(d)preferring the opinions of a general surgeon and a consultant orthopaedic surgeon over that of a specialist hand surgeon on the question of causation of carpal tunnel syndrome;
(e)misdirecting himself as to the correct application of sections 9A and 16 of Workers Compensation Act 1987 (‘the 1987 Act’);
(f)not accepting the evidence of Dr Stapleton;
(g)placing insufficient weight on the Appellant Employer’s lay evidence, and
(h)preferring his own interpretation of a videotape of the worker carrying out her duties to that of Dr Stapleton.
Essentially, the issues in this appeal are whether the Arbitrator erred in finding that the Respondent Worker’s carpal tunnel syndrome had been caused or aggravated by the nature and conditions of her employment with Electrolux (‘injury’), whether her employment had been a substantial contributing factor to that condition or its aggravation (‘substantial contributing factor’) and whether the Respondent Worker is totally or partially incapacitated for work (‘incapacity’).
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Appellant Employer seeks to rely on new evidence in the form of a Medical Assessment Certificate (‘MAC’) from an Approved Medical Specialist (‘AMS’), Dr Lethlean, dated 20 November 2006. This certificate was obtained in Commission proceedings in the matter of Belinda Shea v The Exchange Hotel (number 11859-06) (‘Shea’).
The Appellant Employer’s argument in support of the admission of the MAC is:
a) the evidence post dates the Arbitration hearing on 18 October 2006 and therefore was not available at that time;
b) the evidence is of such probative value that there is a high degree of probability that it will lead to a different outcome in the case if it is admitted into evidence;
c) Dr Lethlean is a consultant neurologist who expresses a general view on the causation of carpal tunnel syndrome which is not confined to the specific circumstances of Ms Shea, and
d) if evidence is not admitted it will result in a substantial injustice to the Appellant Employer.
The Respondent Worker opposes the introduction of new evidence for the following reasons:
a) it is an assessment by a doctor in a different case on entirely different facts;
b) if it was thought necessary, an opinion could have been sought from Dr Lethlean in the present claim. Instead, the Appellant Employer qualified Dr Stapleton who has provided the same views as those given by Dr Lethlean in Shea;
c) Dr Stapleton’s opinion was rejected by the Arbitrator, and
d) Dr Lethlean’s opinion is not new evidence.
Discussion and Finding: Fresh Evidence
The passage the Appellant Employer seeks to rely on is on page six of the MAC where, under ‘causation’, Dr Lethlean said:
“Excluding those cases where it [carpal tunnel syndrome] is due to arthritis, direct injury with fractures etc, and medical conditions which predispose to it, it develops in both sexes and at all adult ages, obesity is one statistical factor contributing, but occupational, sporting and other activities are not generally causative, nor contributing. The anatomical dimensions of the carpal tunnel are assumed to be important.”
It is important to draw a distinction between ‘new evidence’ and ‘more evidence’. The opinion given by Dr Lethlean is very similar to that expressed by Dr Stapleton and relied on by the Appellant Employer before the Arbitrator. It adds nothing to the persuasive value of that evidence. Dr Lethlean’s opinion is based on “the literature” (page six), but he does not identify that literature. He also stated that “there is no separate body of literature support of comparable statistical value to support a contrary view, nor is this advanced by Drs Dixon and Betts”. In the present matter the Respondent Worker relies on two research articles in support of her claim. Dr Lethlean does not address those articles. He was not aware of Ms Osborne’s duties or personal circumstances.
Dr Lethlean’s opinion was based on unidentified literature and on the following factors:
a) occupational activities are “not generally” causative or contributory to carpal tunnel syndrome (emphasis added);
b) Ms Shea’s symptoms developed “over a period of a week or so”, and
c) Ms Shea’s condition was developing prior to the period when she was employed for the Respondent as a chef.
I reject the Appellant Employer’s application to rely on fresh evidence. Dr Lethlean’s opinion adds nothing that has not already been presented in the Appellant Employer’s case through the reports of Dr Stapleton. Dr Lethlean’s conclusions are clearly directed to Ms Shea’s particular circumstances. He did not exclude the possibility that work can cause or contribute to CTS. In these circumstances the rejection of Dr Lethlean’s MAC will not result in any injustice, let alone a substantial injustice, to the Appellant Employer.
Further, an appeal to a Presidential member is by way of a review. It is not a second hearing. To allow Dr Lethlean’s opinion into evidence would be to embark on a fresh hearing and that is not the purpose of a review. In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 (‘Mayne Group’) it was held at [39]:
“A Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing, nor is the Presidential Member dealing with the matter de novo, nor is he or she arriving at a fresh decision based upon all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).”
The application to rely on fresh evidence is refused.
SUBMISSIONS
Appellant Employer’s Submissions
The Appellant Employer submits:
a) because it is not an orthopaedic condition, carpal tunnel syndrome is a condition whose medical analysis and diagnosis should properly fall within the specialities of a hand and reconstructive surgeon, a neurologist or a rheumatologist and not an orthopaedic or general surgeon. Therefore, the Arbitrator should have preferred the evidence of Dr Stapleton to that of the doctors relied on by Ms Osborne;
b) the Respondent Worker’s duties at Electrolux did not fit within the duties described at page four of the Wikipedia article (tendered in support of her claim) as being identified as contributing to repetitive stress induced carpal tunnel syndrome. Her duties were not “vigorous and routine”;
c) even if Ms Osborne’s duties were “vigorous and routine” such activities are often merely associated with but do not cause CTS;
d) on a proper analysis of the articles relied on by Dr Burgess (on behalf of Ms Osborne), support for the Respondent Worker on the issues of injury and substantial contributing factor is not forthcoming;
e) the literature does not support the Respondent Worker. An article by Sonja Falkiner and Dr Stuart Myers “When Exactly Can Carpal Tunnel Syndrome Be Considered Work-Related?” (‘Falkiner and Myers’) concluded:
“Except in the case of work that involves very cold temperatures (possibly in conjunction with load and repetition) such as butchery, work is less likely than demographic and disease-related variables to cause CTS. To label other types of work as having caused CTS, therefore, would result in inappropriate allocation of resources. It would also relive individuals of the responsibility of addressing correctable lifestyle factors and treatable illnesses such as obesity, diabetes, smoking and increased alcohol intake which may have contributed to their CTS more than their work.”
f) an article by Dr Hadler titled “Carpal Tunnel Syndrome, Diagnostic Conundrum” stated that “if the health effect is carpal tunnel syndrome, no work place hazard can be identified”;
g) the literature reveals an increased likelihood of developing CTS if the individual concerned is obese or overweight. Dr Leslie, general practitioner, stated in his report of 8 May 2006 that Ms Osborne was “a little overweight”, a matter not noted by Drs King or Burgess;
h) CTS is a condition which is “by and large genetically predetermined and constitutional in origin” (Appellant Employer’s submissions in reply, filed 29 January 2007, paragraph three);
i) Dr Burgess’ opinion should be rejected because:
· he is not qualified to express an opinion on the aetiology of CTS;
· relied on articles which, on proper analysis, support a conclusion different to that which he reached, and
· failed to take into account Ms Osborne’s weight.
(i)Ms Osborne’s duties were not analogous to those of a slaughterman or shearer and she was not required to work in very cold temperatures whilst performing duties that required “load and repetition”;
(j)the Arbitrator failed to refer to Morgan v Coles Myer Limited [2005] NSWWCCPD 64 (‘Morgan’) where it was held that the worker’s CTS had not been caused or aggravated by employment as a meatpacker with Coles;
(k)the Arbitrator failed to refer to Damalas v Skiadopoulos [2005] NSWWCCPD 106 (‘Damalas’) where the evidence included evidence from Dr Bornstein that CTS is “a constitutional idiopathic disorder”;
(l)the Arbitrator’s failure to refer to Morgan or Damalas demonstrates “a clear inadequacy of reasoning on his part” (Appellant Employer’s submissions in reply, paragraph eight);
(m)the Arbitrator failed to take into account the probability that the injury would have happened in any event at about the same time or same stage of Ms Osborne’s life, if she had not been at work (section 9A(2)(d) of the 1987 Act);
(n)Dr Stapleton was the only doctor with appropriate qualifications to comment on causation who took all relevant and necessary factors into account, viewed video of her “actual work duties” (Appellant Employer’s submissions paragraph eight) and who expressed an opinion on the issue of ‘substantial contributing factor’ (9A of the 1987 Act). As a result, the Arbitrator should have preferred and accepted his evidence;
(o)the Appellant Employer’s lay evidence (including the video) supported the opinion of Dr Stapleton that Ms Osborne’s CTS was not related to her employment;
(p)there was no evidence that the light duties Ms Osborne performed up to 1 March 2006 were not available on the open labour market or that those duties were duties “specially made available to the Applicant” ( see Arbitrator’s Statement of Reasons for Decision (‘Reasons’) at paragraph 28);
(q)there was no evidence to support the Arbitrator’s finding that “there is no real work in the open labour market reasonably accessible to her that the Applicant would be capable of performing” (Reasons, paragraph 29), and
(r)the Arbitrator should have found that Ms Osborne was partially incapacitated for work rather than totally incapacitated.
The Respondent Worker submits:
a) Ms Osborne’s duties were described as constant and repetitive. They included:
· screwing fascias onto fridges and banging the fascias into position with her right hand while positioning them with her left;
· using an air gun to insert screws into doors;
· fitting ‘back panels’ by banging metal on metal into place with her hands, and
· pushing and pulling parts along a track (‘book moulds’) with her hands at a fast pace in order to reach a target of 1000 per day.
b) the video of Ms Osborne’s duties was of her light duties (save for the ‘back panels’ job) given to her after she reported her symptoms in November 2005, not video of her normal duties;
c) no video or other description of Ms Osborne’s normal duties was given to Dr Stapleton;
d) the Arbitrator viewed the video, heard Ms Osborne give oral evidence and accepted her evidence and made his determination after a careful consideration of the law and its application to the facts as found;
e) the Arbitrator was correct to reject Dr Stapleton’s opinion because:
· he had no relevant history about her pre November 2005 duties;
· he made no relevant findings on examination;
· he spent no more than 10 minutes with Ms Osborne;
· the video given to Dr Stapleton was of Ms Osborne’s light duties (save for the ‘back panels’ duties), and
· expressed his conclusion based on a statistical analysis and his preformed view, rather than on the evidence in the matter.
f) the Arbitrator correctly applied section 9A;
g) the medical experts retained by the Respondent Worker were all reputable doctors who based their opinions on the relevant history each received and their findings on examination. The Arbitrator was entitled to accept their conclusions in preference to Dr Stapleton;
h) no challenge was made at the Arbitration hearing to the expertise of Drs King and Burgess;
i) Dr Stapleton has not undertaken any scientific research or study to warrant weight being placed on his “soon to be published document” (Respondent Worker’s submissions, page eight) (this article has now been published in 2006 ANZ Journal of Surgery 494);
j) Dr Stapleton concludes his article by saying that CTS is genetically predetermined. This does not determine the issue the Arbitrator had to decide, namely, whether Ms Osborne sustained an injury to which her employment was a substantial contributing factor. In deciding this issue the authorities confirm that ‘injury’ includes the onset of symptomatology or causing a change in the symptomatology (see Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Semlitch’);
k) Dr Stapleton misunderstood the issues in the case when he stated, “employment with Electrolux Home Products may give her difficulty such that employment may contribute to current symptomatology, but it does not address the question of the underlying problem” (Dr Stapleton, report 15 December 2005, page five);
l) the Falkiner and Myers article states that “in most cases, work acts as the ‘last straw’ in CTS causation”. Dr Stapleton’s opinion is “contraindicative to this conclusion and this article is consistent with the opinion of Dr Burgess” (Respondent Worker’s submissions, page nine);
m) whether the quota for fascias was 20-30, as claimed by Mr Hallett, or 30-40, as claimed by Ms Osborne, was found by the Arbitrator to be of no significance;
n) Morgan can be distinguished because in that case the Arbitrator found that the worker’s medical case lacked consistency and was not comprehensive;
o) Damalas can also be distinguished because in that case the Arbitrator found that the worker’s CTS was not related to the specific incident pleaded;
p) the question of whether a finding of total incapacity was open was raised by counsel for Ms Osborne at the Arbitration hearing and no submission was made by counsel for the employer that such a finding could not be made, and
q) Ms Osborne’s assertion that she could perform light work was made in reference to light duties she hoped would be made available by Electrolux, not in relation to her obtaining alternative work on the open labour market.
DISCUSSION AND FINDINGS
Injury
The Lay Evidence
The lay evidence consisted of evidence from Ms Osborne, Mr Hallett, supervisor of the ‘door line’ and Ms Osborne’s supervisor from 2004 until October 2005, Mr Bevan, supervisor of the ‘high pressure foam’ department, and Shane Honeysett, the Appellant Employer’s return to work co-ordinator and injury management advisor.
Ms Osborne’s evidence is set out in her statement dated 27 September 2006 and in her oral evidence at the Arbitration hearing on 18 October 2006. In her oral evidence she stated that she first reported a problem with her right arm in 2002 whilst ‘screwing down’ (T7.2 and T11.32). Work on the ‘Q Line’ required use of a drill that would “give a flick of the wrist” (T13.12). The description of her duties is set out in paragraphs 9 to 17 of her statement and has been summarised at paragraphs [4], [5] and [6] above.
The Arbitrator carefully considered the Appellant Employer’s lay evidence at paragraphs 17, 18 and 19 of his Reasons. In respect of Mr Hallett’s evidence that the quota for fascias was 20-30 per day rather than the 30-40 per day asserted by Ms Osborne, the Arbitrator found there was no significance in the difference. I agree with that conclusion.
Mr Hallett stated that rubber mallets were “available for use during the course of her duties” (emphasis added) (statement, paragraph seven). That statement may well be correct, but the video, which I have viewed, clearly demonstrates that workers fitted the metal back panels to fridges by firmly banging them into place with the base of their hands. The video corroborates Ms Osborne’s evidence on this issue, at least as far as the back panels are concerned. If Mr Hallett’s statement was directed to the fitting of the fascias onto fridge doors, it is of no assistance and the Arbitrator was entitled to prefer and did prefer Ms Osborne’s evidence.
Mr Bevan stated that “no ‘banging’ is required when fixing back panels to fridges. The correct procedure involves the back panel being tapped into place and rubber mallets are available for this purpose if required” (emphasis added) (statement, paragraph five). Mr Bevan’s evidence was directly contradicted by the video and was rightly rejected by the Arbitrator as being of no assistance.
Mr Bevan became familiar with Ms Osborne in about October/November 2005. He stated that he did not agree that she was a ‘hard’ and ‘reliable’ worker. In support of his view he stated that from October 2005 until she ceased work in March 2006 “her absenteeism was particularly bad” (statement, paragraph three) and he had cause to issue her with three written warnings. Each of the ‘warnings’ was issued when Ms Osborne was on light duties, two make specific reference to her problems with her painful arms and the third attached a doctor’s certificate. The ‘warnings’ did not support Mr Bevan’s assertion that Ms Osborne was not a reliable worker, but they did support the Arbitrator’s conclusion that the Appellant Employer was “attempting to terminate the Applicant’s employment” (Reasons, paragraph 18).
The statement from Ms Honeysett confirmed that Ms Osborne reported to first aid on 26 November 2002 complaining of a painful forearm. She also confirmed that Ms Osborne complained of her pain in her wrists and arms on 22 November 2005 and that she was immediately placed on suitable duties. On 24 November 2005 Ms Honeysett videoed three jobs at Electrolux: ‘book ends’, ‘taping’ and ‘back panels’. The first two jobs were part of the suitable duties given to Ms Osborne after she reported her problems on 22 November 2005. Ms Osborne performed the ‘back panels’ job in October 2005 and, possibly, November 2005. This job aggravated her condition (T26.51) though she described fitting the fascias as “worse” (T22.31) because it was harder to do (T22.36).
Having regard to the lay evidence it was open to the Arbitrator to accept Ms Osborne’s description of her duties.
The Medical Evidence
Ms Osborne saw her general practitioner, Dr Leslie, on 22 November 2005 complaining of bilateral arm pain and shoulder pain when lifting, together with paresthesia in both wrists that had been present over most of 2005 but had been worse in the previous two months. He took a history that her duties at Electrolux involved a lot of lifting and banging of fridge door components with her hands, which caused significant jarring to her hands, wrists and arms. The doctor diagnosed her as suffering from regional pain syndrome and possible CTS.
A nerve conduction study conducted on 31 January 2006 confirmed evidence of bilateral CTS. Dr Leslie concluded, “although Mrs Osborne is a little overweight in my opinion her employment at Electrolux was a substantial contributing factor to her injury” (report, 8 May 2006).
Ms Osborne was referred to Dr King, consultant surgeon, who she saw on 12 February 2006. In his report of 5 May 2006 Dr King noted Ms Osborne developed her symptoms whilst performing duties fitting fascias by banging them into place with her hands. He then stated, “I am sure that her repeated activities with her hands and the jarring from seating the fascia significantly contributed to her carpal tunnel syndrome”. He felt her symptoms were sufficient to warrant surgical decompression.
Dr Burgess, orthopaedic surgeon, examined Ms Osborne at the request of her solicitor on 8 March 2006 (report 16 March 2006). Dr Burgess took a history consistent with Ms Osborne’s evidence about the nature of her duties. In his opinion Ms Osborne had “symptoms and signs of work-related carpal tunnel syndrome” (page three). He then added:
“The history and description of her work rates as one of specific and unusual and persistent stresses on each hand.
Notwithstanding Dr Murray Stapleton’s opinion it is in fact considered that carpal tunnel syndrome can be caused by specific stresses on the hands. Although it may be accepted that work is less likely than demographic and disease related variables to cause carpal tunnel syndrome, to state, as does Dr Murray Stapleton, that work never caused carpal tunnel syndrome, is in fact incorrect. In a letter to the Medical Journal of Australia (and I can provide the reference if required), it has been stated that work stresses can cause carpal tunnel syndrome and of particular interest is that the letter points out that the non-dominant hand is often the one affected and thus right handed shearers get it in their left hand, the hand that does all the work holding the sheep, likewise right-handed slaughterman suffer it in their left hand, the hand that does most of the work holding and manipulating the ‘meat’.”
The Appellant Employer’s medical case was from Dr Stapleton, hand, plastic and reconstructive surgeon, who examined Ms Osborne on 14 December 2005. Dr Stapleton’s history was that Ms Osborne “assembles refrigerators for Electrolux and has been working for that organization, full time, for 8 years”. The doctor had been provided with a copy of what he describes as “the CD of her regular duties”. At the hearing it was assumed that the doctor had been sent the video that was tendered in evidence and has been discussed above. He noted her weight to be 96kg, which he felt “could well be an aggravation factor”. He felt she probably had CTS. As to causation he stated that he could see no reason to implicate her employment with Electrolux “not by way of causation, nor by way of aggravation, acceleration, or exacerbation” (report, 15 December 2005, page five). He added that her employment with Electrolux “may contribute to current symptomatology, but does not address the question of the underlying problem” which he felt was “genetically predetermined”.
In his second report dated 17 February 2006 Dr Stapleton added that carpal tunnel syndrome was “of a degenerative nature” that mainly affects women of menopausal age, but it is unrelated to occupation. The fact that Ms Osborne is only 29 years old was conceded by Dr Stapleton to be unusual but he believed her weight to be “the contributing factor”.
In his third report dated 17 October 2006 Dr Stapleton restated his view that “carpal tunnel syndrome has nothing whatsoever to do with occupation” and he attached a copy of his study published in the ANZ Journal of Surgery and the article by Falkiner and Myers referred to above. On the question of aggravation the doctor confirmed his view that Ms Osborne’s employment did not aggravate “the pathology of carpal tunnel syndrome”. However, he conceded “any repetitive movement or any flexion of the wrist will cause that nerve [the median nerve] to produce nerve compression symptoms”. That draws attention to the fact that the underlying median nerve is compromised but it does not cause the compromise.
The Articles
Dr Stapleton’s article was criticised by the Arbitrator for not considering the percentage of the male working population involved in heavy industry and for not identifying the proportion of the workers engaged in such occupations reporting symptoms of carpal tunnel syndrome (Reasons, paragraph 23). These defects in Dr Stapleton’s statistical analysis led the Arbitrator to “have serious doubts about the reliability of Dr Stapleton when it comes to giving opinions about the causes of carpal tunnel syndrome” (Reasons, paragraph 23). I share the same concerns about Dr Stapleton’s methodology and his apparently inflexible position on the potential causes of carpal tunnel syndrome.
Whilst the Falkiner and Myers article does provide some support for the Appellant Employer’s position, it is not the only research on the topic. In addition, the authors properly concede, “in most cases, work acts as the ‘last straw’ in CTS causation”. This concession is one that Dr Stapleton seems unwilling to make and further undermines his opinion. It is a concession that requires each case to be assessed on its merits to determine if the worker has sustained an injury within the meaning of section 4 of the 1987 Act.
The research relied on by the Respondent Worker consisted of several articles provided by Dr Burgess. All were supportive of the conclusion that repetitive work was associated with CTS. It is only necessary to refer to two of the articles in detail. The first is from the National Guideline Clearinghouse tilted “Diagnoses and treatment of work-related carpal tunnel syndrome” (‘the National Guideline’) which cites as its source the Washington State Department of Labor and Industries. This article considered that for a claim for CTS to be accepted one of the following work conditions should be occurring on a regular basis:
1.repetitive hand use, especially for prolonged periods (eg, keyboard users), against force (eg, meat cutters), or with awkward hand positions (eg, grocery checkers), with repeated wrist flexion, extension, or deviation as well as forearm rotation, or with constant firm gripping;
2.regular, strong vibrations (eg, jack hammering), or
3.regular or intermittent pressure on the wrist.
It then lists the types of jobs that are most frequently mentioned in the literature or in the “Labor and Industry’s” data. They include: meat cutting; seafood, fruit, or meat processing or canning; carpentry; roofing; dry walling; boat building; book binding; wood products; dental hygienist; and intensive word processing. The list was not exhaustive but intended only as a “guide in consideration of work-relatedness” (page four).
The second article relied on by Ms Osborne is from Wikipedia entitled “Carpal tunnel syndrome” (‘the Wikipedia article’). Under ‘causes’ of CTS the author stated at page two:
“Most cases of CTS are idiopathic. Many people with carpal tunnel syndrome have gradually increasing symptoms over time. A common factor in developing carpal tunnel syndrome symptoms is increased hand use or activity. While repetitive activities are often blamed for the development of CTS, the correlation is often unclear. Physiology and family history may have a significant role in individual susceptibility.”
Under ‘work related’ the author stated at page three:
“The relationship between work and CTS is controversial; in many locations workers injured at work are entitled to time off and compensation. Many cases of carpal tunnel syndrome are provoked by repetitive grasping and manipulating activities, and the exposure can be cumulative. Symptoms are commonly exacerbated by forceful and repetitive use of the hand and wrist in industrial occupations….
Studies done by the National Institute for Occupational Safety and Health (NIOSH), indicate that job tasks involving highly repetitive manual acts or necessitating wrist bending or other stressful wrist postures were connected with incidents of CTS or related problems. However, it appears that the 30+ studies reviewed were concerned with the occupations of assembly line workers, meat packers, food processors, and the like, not general office workers.”
At page four the author stated that “any activity where hand use is vigorous and routine could contribute” to repetitive stress induced carpal tunnel syndrome. It was then stated:
“Often people suffering from carpal tunnel syndrome can have multiple contributing factors which are aggravated by vigorous activities and repetitive trauma to the hand.”
Conclusions
Injury
I reject the Appellant Employer’s submission that the proper analysis of CTS falls outside the “medical capabilities of a general surgeon” and, by implication, that Dr Burgess is also not qualified to comment on the cause of the condition. All of the experts relied on by Ms Osborne were legally qualified medical practitioners and they were all qualified to express an opinion on her condition and its cause. I infer from Dr King’s reports that he will undertake the proposed surgery. It is fanciful to suggest that the issue of causation of CTS is outside his ‘medical capabilities’. Further, unlike Dr Stapleton, all of the Respondent Worker’s doctors took a detailed history of her duties and expressed their opinions based on that history and their findings on examination. They were entitled to do so and the Arbitrator was entitled to consider their opinions along with all of the other evidence in the case. That is what he did. That approach discloses no error.
I do not agree that Ms Osborne’s duties did not fall within the description set out at page four of the Wikipedia article (see paragraph [61] above). Her duties were vigorous and routine. The hand activities involved when doing the fascias and the back panels involved stress on her hands and wrists. That was clearly demonstrated in the video tendered by the employer.
It is not to the point to say that vigorous work activities are often associated with, but do not cause, CTS. The proper question is whether Ms Osborne has suffered an injury within the meaning of the legislation. The Arbitrator found that she did. That finding was open on the evidence and discloses no error.
The literature demonstrates that there are many potential causes of CTS (including obesity) and that work can be a relevant factor in certain circumstances. The Arbitrator held it was a relevant factor in the present case and the evidence strongly supported that finding. The article by Falkiner and Myers on which the Appellant Employer places so much weight conceded that in most cases work acts as the ‘last straw’. The evidence in the present case was much stronger than that. Dr Leslie concluded that work was a “substantial contributing factor” to Ms Osborne’s CTS. Dr King thought that the duties “significantly contributed to” the CTS.
I do not think that the literature relied on by the Appellant Employer was of such persuasive weight that the Arbitrator was in error in preferring the opinions of Ms Osborne’s treating doctors and her qualified orthopaedic surgeon in reaching his conclusions on injury and substantial contributing factor. In reaching this view I have read and carefully considered the article by Dr Hadler, and the commentary and research by Dr Potter which was also tendered in the Appellant Employer’s case.
To say that CTS is ‘by and large genetically predetermined’ is not the end of the enquiry.
The Arbitrator was not in error in accepting the opinions of Drs King and Burgess. Both were well qualified to comment on Ms Osborne’s condition and the connection between that condition and her duties with Electrolux. Ms Osborne’s weight might well have been a factor that predisposed her to develop CTS (Dr Stapleton described it as ‘the contributing factor’ in his report of 17 February 2006) but that was not determinative to the exclusion of her work duties.
The Arbitrator was not in error in not referring to Morgan. That case turned on its own facts and the evidence presented. It is not authority for the general propositions advanced by Dr Stapleton. In Morgan the Arbitrator found that the worker’s medical case lacked consistency and was not comprehensive. As a result, it was not accepted. That finding was not overturned on appeal. There is no general principle to be extracted from Morgan that no process worker can recover compensation for the condition of CTS. Each case depends on its own facts and must be determined on its merits. The same comment can be made about Dalmalas.
The Arbitrator’s failure to refer to Morgan did not disclose an ‘inadequacy of reasoning’. The Arbitrator clearly stated the basis for his decision and his reasoning process in compliance with his obligation under Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). I reject this challenge to the decision.
The Appellant Employer’s submission that Dr Stapleton was the only doctor with appropriate qualifications to comment on causation has been dealt with above at [66]. The Appellant Employer’s additional submission that Dr Stapleton was the only doctor who took all relevant and necessary factors into account, viewed the video of her ‘actual work duties’ and who expressed an opinion of substantial contributing factor, requires separate comment. Dr Stapleton did not take a full history of Ms Osborne’s duties. His history is set out at [56] above. It is not clear if he viewed the video that was sent to him, as he makes no comment about its contents. In any event the video only showed part of Ms Osborne’s regular duties (the back panels) together with the light duties given to her after 22 November 2005. I therefore reject the submission that Dr Stapleton was the only doctor who took all relevant factors into account.
Substantial Contributing Factor
The Appellant Employer’s challenge under this heading is that the Arbitrator failed to take into account the probability that Ms Osborne would have developed CTS at some stage regardless of whether she worked for Electrolux.
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The ultimate question of whether the section 9A test is satisfied is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 at [29]).
Considering subsection 9A(2)(d), I note that Dr Stapleton stated in his report of 17 October 2006 that Ms Osborne “would be in the same position suffering from carpal tunnel syndrome whether she worked or whether she did not” (page four). The acceptance of that view requires an acceptance of Dr Stapleton’s primary position, namely, that employment in the present case was totally irrelevant to the development of Ms Osborne’s symptoms. The Arbitrator rejected that opinion and I agree with his conclusion and reasons. They disclose no error. The evidence from Drs King, Leslie and Burgess provided ample support for the Arbitrator’s conclusion that Ms Osborne’s employment was a substantial contributing factor to her injury.
Incapacity
At the Arbitration hearing it was submitted that Ms Osborne was totally incapacitated for work (T52.23). The Arbitrator was required to assess Ms Osborne’s ability to earn in the labour market reasonably accessible to her having regard to the injury he found she had sustained. He noted her symptoms and disabilities at paragraph 27 of his Reasons. She suffers from:
a) pain in her arms, wrists and hands with aching and pins and needles;
b) numbness in her arms, wrists and hands;
c) clumsiness with her hands, often dropping things;
d) sleeplessness;
e) weakness;
f) inability to write much;
g) difficulty with shopping;
h) difficulty with household tasks such that she receives assistance from her mother and sisters, and
i) swelling if she tries to exercise.
The Arbitrator noted Ms Osborne’s evidence that she thought she could perform light work and that she performed suitable duties until Electrolux ceased to provide them in March 2006. The fact that that work was withdrawn was some evidence that the work was not readily available in the open labour market. If it was a readily available job no reason was advanced as to why it was not made available to Ms Osborne, an employee of long standing. The evidence from Electrolux suggests that Ms Osborne’s attempt at light duties was not completely successful. Whilst on light duties Ms Osborne was issued with three warnings for absenteeism. In addition, not all of the light duties given to her were within her capacity. For example, she was not able to cope with cleaning out fridges (Respondent Worker’s statement, paragraph 26). Her letter to Electrolux dated 29 January 2006 indicating her willingness to perform light duties only identifies two activities she thought were suitable: taping, without bending pipes, and peeling tape off doors. It is totally unrealistic to expect such jobs to be available on the open labour market. There was no evidence that they were available, but some evidence (from the action taken by Electrolux) that they were not. The Commission is a specialist tribunal and is taken to have knowledge of the labour market and similar matters (Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385 at 392). The Arbitrator was entitled to find that Ms Osborne’s view that she could perform light duties was unrealistic.
Dr Burgess was of the view that Ms Osborne was not fit for any process work or any work that placed specific and direct stresses on her wrists (report, 16 March 2006, page four). Dr King felt her symptoms were sufficient to warrant surgery. That surgery had not been performed as at the date of the Arbitration hearing.
There is no evidence that Ms Osborne has any transferable skills. She left school at the age of 18 and worked in a piggery for two years (report Dr Burgess 16 March 2006, page two) before starting work with Electrolux where she remained until she ceased in March 2006. She lives at Manildra, a small town 50 kms from Orange. In these circumstances it was open to the Arbitrator to find that there was “no real work in the open labour market reasonably accessible to her that the Applicant would be capable of performing” (Reasons, paragraph 29).
The question of total incapacity was considered by the Court of Appeal in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213 where Justice Mahony said:
“Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds in the context which will produce income. I do not wish by what I say to narrow the scope of the enquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is highly or partially incapacitated and to what extent, the Court will not ordinarily be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not as it were spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’, having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he is able to do those things which would permit him to do work in the relevant labour market.” (emphasis added)
Judge Burke expressed a similar view in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 at 180 where his Honour said, “one always seeks to assess the capacity to earn of this particular worker in his particular circumstances”. This passage was expressly approved and adopted by Handley JA in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175 at 179.
The principles set out by Justice Mahony and Judge Burke are applicable in the present case. The Arbitrator had regard to Ms Osborne’s particular circumstances. The authorities required him to do so. Having regard to the principles discussed by Justice Mahony and the whole of the evidence in the present case, it is my view that it was open to the Arbitrator to find that Ms Osborne was, and is, totally incapacitated for work in the labour market reasonably accessible to her. His finding discloses no error.
DECISION
The Arbitrator’s findings and determinations dated 13 November 2006 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
13 April 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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