Flinn and Comcare
[2010] AATA 760
•5 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 760
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2008/2335, 2008/2335,
) 2009/6005, 2009/3735,
GENERAL ADMINISTRATIVE DIVISION ) 2009/3734, 2008/2337 Re Michael Flinn Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr Ion Alexander, MemberDate5 October 2010
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd]...........................
Senior Member
CATCHWORDS – COMPENSATION – meat inspector – osteoarthritis – whether effects of accepted injury to right elbow had ceased – osteoarthritis in right elbow and hand – whether employment contributed in a material degree to condition – DVD evidence – a range of factors contributed to the condition – Tribunal not satisfied that employment contributed in a material degree – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19, 24, 27, 28
Comcare v Canute (2005) 148 FCR 232; (2005) 89 ALD 258
Comcare v Sahu-Khan (2007) 156 FCR 536; (2007) 44 AAR 523; [2007] FCA 15
REASONS FOR DECISION
5 October 2010 Senior Member Jill Toohey
Dr Alexander, MemberBackground
1. Michael Flinn has worked as a meat inspector for the Australian Quarantine and Inspection Service (AQIS) since 1995. He has made the following claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act):
(i)under sections 16 and 19 for an injury to his right elbow and forearm; and
(ii)under sections 24 and s 27 for permanent impairment of his right hand.
2. On 5 January 2005, Comcare accepted liability under s 14 of the Act for an injury to Mr Flinn’s right elbow and forearm. However, it says, the effects of any accepted injury ceased on 11 February 2008.
3. In response to the claim for compensation for permanent impairment of his right hand, Comcare disputes that Mr Flinn has an injury or disease within the meaning of the Act. It does not dispute that he has osteoarthritis in the right hand but it denies that his work contributed materially to that condition. Further, that in any event it is not liable to compensate Mr Flinn because the degree of any impairment is less than 10%.
4. The respondent has not made a determination denying liability under s 14 of the Act for an injury to Mr Flinn’s right hand but agrees that such determination is implicit in its denial of liability under ss 24 and 27 and the Tribunal has jurisdiction to determine s 14 liability.
5. When these proceedings commenced, Mr Flinn also sought compensation for permanent impairment of his right elbow and arm, and for injuries to his cervical spine and left elbow. He has abandoned these claims and the respondent’s decisions concerning them are therefore affirmed.
Legislation
6. Section 14 of the Act provides that an employer is liable to pay compensation in respect of an injury suffered by an employee if it results in death, incapacity or impairment.
7. Mr Flinn’s claims were made before amendments to the Act on 13 April 2007. At the time of his claim, injury was relevantly defined under the Act as a disease, being an ailment suffered by an employee, or an aggravation of such an ailment, that was contributed to, in a material degree, by the employee's employment: s 4 (1) of the Act.
8. Where an injury to an employee results in a permanent impairment, the respondent is liable to pay compensation to the employee in respect of that injury: s 24.
9. Permanent means likely to continue indefinitely. Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function: s 4.
10. If an employee has a permanent impairment other than a hearing loss, the employer is not liable to pay compensation if the degree of permanent impairment is less than 10%: s 24 (7). The degree of impairment is to be assessed according to the Guide to the Assessment of the Degree of Permanent Impairment 2005 (the Guide): s 28 (4).
11. If compensation is payable under s 24, then the employer is also liable to pay compensation for any non-economic loss suffered as a result of that injury or impairment: s 27 (1).
The history of Mr Flinn’s claim for injury to the right elbow
12. Mr Flinn first claimed compensation for an injury to his right arm in September 2000, being “acute tendonitis right forearm and elbow”. That claim was eventually settled by orders of this tribunal, made in January 2003 with the consent of the parties, which included that Mr Flinn had suffered injury to his right arm being “tennis elbow, lateral epicondylitis and medial epicondylitis” caused or materially contributed to by his employment with AQIS.
13. In April 2004, Mr Flinn made a further claim, for “recurrence of tendonitis right forearm (old injury)” affecting his right elbow, arm and hand. In December 2004, he made a further claim for “tendonitis (right forearm)” affecting his “right elbow, hand and arm”, and referred to similar injuries in “2000-2001” and March 2004 affecting his right arm, elbow, hand and fingers.
14. On 5 January 2005, referring to his claim for “tendonitis of right forearm”, Comcare accepted liability under s 14 of the Act for Mr Flinn’s “sprain of other specified sites of elbow and forearm (right)” (sic).
15. On 11 February 2008, Comcare determined that the effects of Mr Flinn’s “sprain of other specified sites of elbow and forearm (right)” had ceased and declined further liability under ss 16 and 19 of the Act.
16. It is not in dispute that Mr Flinn has suffered from two conditions in his right elbow. One is the epicondylitis, or tendonitis, for which Comcare accepted liability. The medical evidence is clear, and Mr Flinn does not dispute, that the effects of this injury have ceased. The other condition is the osteoarthritis for which no claim was made until the current proceedings.
17. We are satisfied that we can determine the claim in relation to osteoarthritis. There is no argument that Mr Flinn has suffered from pain in his right elbow for some years that has been described in various ways.
18. Professor Philip Sambrook, rheumatologist, gave evidence, which we accept, that in 2000, Mr Flinn’s right elbow pain was due either to lateral epicondylitis or the first symptoms of osteoarthritis. Given that an MRI in 2002 showed “moderately severe” degenerative change, and given that osteoarthritis develops slowly over time, he thought it likely that Mr Flinn had osteoarthritis in 2000.
The issues
19. In relation to Mr Flinn’s claim for incapacity payments and treatment of his right elbow, we have to determine whether the effects of his accepted injury have ceased or whether he continues to be entitled to compensation under ss 16 and 19 of the Act.
20. In relation to Mr Flinn’s claim for permanent impairment of his right hand, we have to determine:
(i)whether his osteoarthritis was contributed to in a material degree by his work at AQIS;
(ii)if so, whether he has a permanent impairment;
(iii) if he has, whether the degree of impairment is 10% or more.
Mr Flinn’s evidence
21. Mr Flinn is aged 65. He is right-handed. After finishing high school, he worked for two years as a technical assistant at the CSIRO Research Station at Griffith in New South Wales. He was drafted into the army and did two years full-time national service followed by five years in the reserve.
22. From about 1968, Mr Flinn worked with his father on the family farm doing general farm duties including feeding livestock, driving farm equipment, and planting and harvesting crops. In 1991, when his father died, he took over the farm. He continued with farm work but took on a more managerial role and, from 1992, share farmers did all the planting and harvesting of crops, and contractors did the shearing.
23. From about 1992 to mid-1995, Mr Flinn worked as a wool classer while continuing to work on the farm. He says he would occasionally help lift wool into the press but, otherwise, the work was not heavy, and none of his occupations up to this point involved heavy work.
24. In June 1995, Mr Flinn started full-time work as a meat inspector for AQIS at Cargill Beef in Wagga Wagga. He worked eight hour shifts with half an hour for lunch and 15 minutes for morning tea. He inspected carcasses, heads and organs hung on a moving chain, from a motorised platform which could be adjusted to the height of each carcass. He inspected viscera on a table, turning them to inspect them for lesions, and he palpated, and made incisions to, the various body parts to determine the presence of any disease that would render the meat unsuitable for consumption.
25. Mr Flinn gave evidence that inspectors would spend half-hour rotations examining carcasses and heads, and then viscera. He estimated he examined 30 to 40 heads each hour and, depending on the speed of the chain, up to 100 carcasses each hour, turning them as necessary to examine each side.
26. In 1998, Mr Flinn went to Rockdale Beef (Rockdale) where he worked three shifts of 13 hours and 20 minutes each week, and overtime up to five or six hours. He had half an hour for lunch and 20 minutes for morning tea. He worked half-hour rotations between inspecting carcasses and heads from the rise and fall platform, and the viscera table.
27. Mr Flinn estimates he examined 25 to 30 heads each half-hour rotation, and had to turn large livers. He used his right hand to make incisions, holding the knife with his thumb extended along the handle. He estimates he made up to 300 incisions to carcasses or heads per rotation using “moderate” force during which the knife could hit bone several times during each rotation. From time to time, he would sharpen his knife on a steel. He always used his right hand to make the cuts.
28. From about September 2000, Mr Flinn went off work after what he describes as harassment at work. Around this time he had his first bout of tendonitis in his right arm. He returned to normal duties after 13 weeks. He spent the first three months or so at Cargill Beef, then returned to Rockdale.
29. In mid-2002, Mr Flinn experienced pain in his right arm. He saw his general practitioner, Dr Renshaw, who prescribed anti-inflammatory medication and, he thinks, physiotherapy. He was off work for “quite a few weeks” for which he was paid compensation. He returned to Rockdale in about March 2003 but had continuing pain in his arm.
30. There is some dispute as to the actual hours Mr Flinn was performing the work of a meat inspector at Rockdale but we accept his evidence that he worked at least ten hours a day on three days each week.
31. By October 2004, Mr Flinn was having continual pain in his right elbow and forearm and, after a while, his right hand started to “give way”; he had shooting pain in his right thumb and he could not grasp things. He was also having neck pain. He was off work until May 2005. He was treated with medication and physiotherapy until the physiotherapist said he could do no more for him. He was paid compensation.
32. In May 2005, Mr Flinn returned to Cargill Beef where he continues to work in a supervisory role for four hour shifts, five days a week. He has occasionally done “knife work” since 2005 but experienced pain when he did. He says he has constant pain in his right elbow and down his right forearm, and in the thumb and middle finger, and occasionally the ring finger, of his right hand. He has done some carcass work but says he is “very ordinary” and “not competent”.
33. Mr Flinn says he has pain in his right arm every day, and in his right thumb, and middle and ring fingers. His current treatment comprises anti-inflammatory medication which he takes most days, Panadol when required, and Deep Heat cream; he does exercises recommended by his general practitioner.
34. Mr Flinn says he is restricted in housework, such as ironing, and in the garden he is restricted to cleaning up and raking.
DVD evidence
35. Mr Flinn reported to each of the doctors he saw for treatment or assessment to the effect that his work as a meat inspector involved long hours of heavy, strenuous work, including lifting body parts such as livers weighing up to 8 kilograms, and turning carcasses for inspection.
36. Comcare produced in evidence a DVD, made in June 2010 at Rockdale, of a meat inspector at work in conditions the same as those in which Mr Flinn worked.
37. The DVD was made available to each of the medical witnesses prior to the hearing.
38. The DVD shows an inspector working on a rise and fall platform inspecting carcasses, head and organs, and at a viscera table. It shows carcasses on hooks being turned by hand for inspections, and the inspector making repeated incisions to the various parts. From our observations, the carcasses could be turned around with minimal effort, often with one hand, and the incisions to the various parts were made apparently easily, with occasional moderate force.
39. Mr Flinn does not dispute that the DVD shows the overall setup of the meatworks during his time as a meat inspector. However, he maintains that the inspector in the DVD is younger, taller and stronger than he is.
40. Mr Flinn disputes the suggestion that the work shown on the DVD is not heavy or strenuous. He maintains it is moderately heavy. He says turning carcasses for inspection was strenuous work for him, and required moderate force, for instance if the hook failed to turn or the carcass became stuck against the railing of the platform. He concedes that lifting livers required only moderate force but he does not resile from his description of the work overall as heavy and physically demanding. It was put to Mr Flinn in cross-examination that the DVD showed something different but he maintains that, after 10 or 12 hours, it is heavy work.
Mr Hair’s evidence
41. Robert Hair works in a part-time advisory position to AQIS and was employed during the period of Mr Flinn’s employment.
42. Mr Hair filmed the operations at Rockdale for the DVD. He gave evidence that the setup and conditions as shown on the DVD were the same as those when Mr Flinn worked there.
43. Mr Hair gave evidence that he observed Mr Flinn working at Rockdale and at Cargill Beef, although it is not clear how often or under what circumstances as this did not come out in evidence. Mr Flinn disputes this claim.
44. Mr Hair told the Tribunal that Rockdale is a small meatworks where carcasses and body parts move slowly for inspection, and there is more variety of tasks compared to larger meatworks where an inspector could spend a rotation examining only heads and at higher speed. He gave evidence that inspectors at Rockdale only ever examine half-carcasses, not whole carcasses (as Mr Flinn reportedly told doctors). The set up as shown on the DVD supported Mr Hair in this.
45. It was suggested that a written statement made by Mr Hair in 2000 in connection with a previous claim by Mr Flinn indicated some prejudice against Mr Flinn, but that was not borne out by his oral evidence, which we accept.
46. In our view, although Mr Flinn was generally a credible witness, he had a tendency to exaggerate the force, strength and repetition involved in his work. We accept that the DVD showed a single meat inspector at work who was younger, taller and, probably, stronger, that Mr Flinn. Nevertheless, we are satisfied that it showed enough of the set-up and process where Mr Flinn worked to enable us to say with confidence that the work is not as heavy, strenuous or repetitive as he described to his doctors or claimed in evidence. Further, while the work has an element of repetition, it is not to the degree that he claims.
Professor Sambrook’s evidence
47. Professor Sambrook assessed Mr Flinn and provided written reports and oral evidence.
48. Professor Sambrook gave evidence that osteoarthritis is a degenerative condition in which the cartilage between joints wears away and the bone hypertrophies. Factors including genetics, age, occupation and exposure to trauma may contribute to its development. On x-ray, around 60% of people aged in their 60s would show osteoarthritis somewhere in their bodies. In some people it is asymptomatic; in others, there may be pain, swelling and stiffness, and loss of function.
49. Professor Sambrook described primary, or constitutional, osteoarthritis as typically genetic and developing gradually over time, without necessarily any identifiable cause. Whether a person is right- or left-handed has no effect on constitutional osteoarthritis. It is usually symmetrical, and classically seen in the finger and thumb joints, the neck and lower back, the knee, hip and big toe. It is very rare in elbow joints and not even mentioned in what Professor Sambrook describes as the “bible of rheumatology”.
50. Secondary osteoarthritis generally has an identifiable cause, such as trauma or occupation. Whether a person is right- or left-handed may have an effect on secondary osteoarthritis. Force and repetition, even if not large, can have a cumulative effect over time and are relevant to secondary osteoarthritis and thought to be the mechanism of most elbow osteoarthritis. So, for example, carpenters have a high prevalence of osteoarthritis of the elbow.
51. Having seen the DVD, Professor Sambrook did not think the work shown was “generally over-heavy”. He thought it took some force to rotate the carcasses and to push the knife through the organs but the work was more repetitive than heavy, and there were periods when even the repetitive nature was not very prominent.
52. Although he did not think Mr Flinn’s work particularly heavy, Professor Sambrook saw no reason to alter his assessment of the contribution of the AQIS work to the osteoarthritis.
53. In relation to Mr Flinn’s right elbow, Professor Sambrook gave evidence that, because constitutional osteoarthritis of the elbow is rare, he looked to occupational factors as the cause, and Mr Flinn’s farm work and AQIS work were both potentially relevant. Given there seemed to be exposure to frequent repetition for part of the AQIS work, Professor Sambrook thought it reasonable to conclude it played a part in the progression of the disease.
54. Professor Sambrook apportioned 80% and 20% of the osteoarthritis in Mr Flinn’s right elbow to work and constitutional factors respectively. Of that 80%, he apportioned 25% to AQIS work on the basis that Mr Flinn spent 9 of his 37 working years at AQIS. He agreed that this figure could be as low at 17% if Mr Flinn did not work all of 9 years at AQIS.
55. In relation to Mr Flinn’s right hand, because constitutional osteoarthritis is common in hands, Professor Sambrook thought there was some relationship to gripping the knife for AQIS work, but less than in the elbow. He apportioned 20% and 80% to work-related activity and constitutional factors respectively. Of that 20%, he apportioned 25% to AQIS work to arrive at total contribution by AQIS work of 5%.
56. In response to questions by the Tribunal, Professor Sambrook referred to an MRI in July 2002 of Mr Flinn’s right elbow which showed “moderately severe” changes in all compartments. He agreed that Mr Flinn has had two conditions in his right elbow: he has lateral epicondylitis, as identified by Dr Kevin Bleasel, neurosurgeon, but that has settled, and he has osteoarthritis. He thought the pain Mr Flinn was suffering when he made his claim could have been caused by either condition. Because osteoarthritis develops slowly, the moderately severe changes shown in the MRI in 2002 suggested he had had that condition for some time.
57. Professor Sambrook examined the report of an MRI of Mr Flinn’s right elbow. No MRI of the left elbow was available. He did not see x-rays of either elbow. Under cross-examination, he agreed that he had no basis for comparison between the right and left elbows.
Dr McGill’s evidence
58. Dr Neil McGill is a rheumatologist whose regular clinical practice includes seeing people with osteoarthritis. He saw Mr Flinn at the request of the respondent and has provided written reports and oral evidence.
59. Based on x-rays and his clinical examination, Dr McGill considers Mr Flinn has osteoarthritis of both elbows and of several small joints in his hands. He also noted osteoarthritis in his cervical spine and knees.
60. Dr McGill agrees with Professor Sambrook that activity can affect the underlying pathology and progression of osteoarthritis and says that, jack hammering, for example, is associated with osteoarthritis in elbow joints. However, he says, the proposition that repeated ordinary activity causes osteoarthritis is not supported by the literature. In his view, frequent repetition of high-level, forceful activity would be required.
61. In relation to Mr Flinn’s right elbow, Dr McGill agrees with Professor Sambrook that constitutional osteoarthritis of the elbow joint is uncommon. In his view, where a person performs activity predominantly on one side but shows equal degenerative changes bilaterally (as Mr Flinn shows), the strongly favoured conclusion is that constitutional osteoarthritis, rather than any external factor, is the cause.
62. Taking into account that x-rays of Mr Flinn’s elbows show symmetrical osteoarthritis, and given symmetrical range of motion in both, Dr McGill discounts any causal connection between the osteoarthritis and work activity. He accepts that physical activity can cause painful symptoms from time to time but says these would resolve, usually within days, and are not indicators of the underlying pathology or progression of the disease.
63. In this regard, Dr McGill disagrees with Professor Sambrook. He disagrees that any greater pain in the right elbow is a good indicator of underlying arthritis. He prefers to rely on the clinical and radiological findings.
64. In relation to Mr Flinn’s right hand, in November 2008 and April 2010, Dr McGill reported a detailed examination and review of x-rays. He noted osteoarthritis of several small joints in both hands, particularly in the right, with the only difference being in flexion of one index finger joint and the absence of left thumb impairment. He discounted any influence of work on the osteoarthritis in Mr Flinn’s hands, other than in the right thumb joint. He thought the nature of the AQIS work made any relation to the osteoarthritis of the right thumb “unlikely” but it was possible, although physical activity could cause painful symptoms from time to time.
65. Dr McGill reported in April 2010 that, using Table 9.8.1a of the Guide (Abnormal Motion/Ankylosis of the Thumb - IP and MP joints), Mr Flinn has 1% whole person impairment (WPI) of the right thumb. Putting aside the cause, he assessed the total WPI of the right hand at 6%.
66. Comparing the nature and duration of Mr Flinn’s farm work and AQIS work, Dr McGill attributed nine-tenths of the activity-related component of the right thumb osteoarthritis to farm work and one-tenth to AQIS work. To arrive at that assessment, he said he allowed, “hypothetically”, that 1% was all related to physical activity. He then allocated one-tenth to the AQIS work based on a guess, taking into account the relative years and hours worked, and the force involved, in each.
67. When asked whether Professor Sambrook’s assessment that 5% of the osteoarthritis in Mr Flinn’s right thumb was attributable to his work at AQIS was reasonable, Dr McGill thought that it was, if based on the history given by Mr Flinn, but not if based on what he saw in the DVD.
68. Having seen the DVD, Dr McGill now thinks the hours worked by Mr Flinn at AQIS were substantially less, and there was less force and repetition to the work, than the impression he gained from Mr Flinn. In his view, the job involved no forceful activity and nor was it repetitive in the sense that it could affect underlying osteoarthritis.
69. Dr McGill now considers there is no association between the AQIS work and the osteoarthritis in Mr Flinn’s right thumb. He thought the intermittent use of the knife on carcasses and offal as shown in the DVD was neither forceful nor repetitive, and even the increased force used to slice the head and tongue did not appear forceful, and was interspersed with other activities. Even allowing for cutting at two or three times the rate shown, the activities shown on the DVD were within the range of normal activities that would have no bearing on the progression of osteoarthritis.
Dr Evans’ evidence
70. Dr Richard Evans, consultant physician, saw Mr Flinn twice for assessment. He has provided five written reports and gave oral evidence. He considers that Mr Flinn suffers from osteoarthritis in the right elbow, and shows signs of past, but not current, epicondylitis in the right elbow. He found clear evidence of damage to the right hand consistent with osteoarthritis.
71. Prior to seeing the DVD, Dr Evans attributed the injury to Mr Flinn’s right elbow to the “extraordinarily stressful”, “very strenuous” nature of his work, and considered the “very heavy nature” of the work an important factor when considering chronic damage to joints. Having seen the DVD, he said, he did not consider the work particularly heavy. However, in his view it was “very, very repetitive” and, on this basis, he had no reason to alter his opinion that Mr Flinn’s injuries were caused by his work (We note that Dr Evans said, referring to the activity shown on the DVD, that “the arm never stopped”. We do not agree that is what the DVD shows, and even Mr Flinn did not claim repetition to the degree on which Dr Smith based his opinion).
72. Mr Flinn does not seek to rely on Dr Evans’ evidence and, in our view, it does not assist us. Dr Evans did not take a full history of Mr Flinn’s employment prior to AQIS and so did not take into account other possible factors. Further, while he has undertaken some research into osteoarthritis, from the information before us, it does not appear to be Dr Evans’ area of expertise.
Dr Smith’s evidence
73. Dr Smith, orthopaedic surgeon, saw Mr Flinn in October 2007 at the request of the respondent. He took a history from Mr Flinn of long hours of “heavy and repetitive work”. He gave evidence that, having seen the DVD, he thinks the work is not heavy and “not terribly repetitive”.
74. Dr Smith noted x-ray evidence of arthritic change in Mr Flinn’s right elbow, and suspected similar change in his right, and changes in both hands.
75. In Dr Smith’s view, there is no relationship between activity and underlying pathology of osteoarthritis, although activity may cause symptoms from time to time. As set out above, neither Professor Sambrook nor Dr McGill agree with him on this point.
76. The respondent does not press Dr Smith’s evidence, and we agree that it does not assist us. In particular, his opinion that activity has no effect on the progression of osteoarthritis is not supported by either Professor Sambrook or Dr McGill.
Contributed to “in a material degree”
77. In Comcare v Sahu-Khan (2007) 156 FCR 536, Justice Finn discusses the approaches of the courts to the evolving definition of disease in Commonwealth workers compensation legislation and, in particular, the meaning of “material” degree of contribution to the cause or aggravation of a condition. He concluded that the correct test of its meaning was probably best captured by the meaning in the Shorter Oxford English Dictionary: ‘4. In a material degree; substantially, considerably’.
78. Finn J agreed with the Full Federal Court in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 that “material contribution” was “intended to require that the contribution be ’more than a mere contributing factor’”; the inclusion of the word “material” imposes “an evaluative threshold below which a casual connection may be disregarded”.
79. As Finn J noted, the difficulty comes in identifying where that threshold lies. He concluded (at 543):
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)"in a material degree" requires 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, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.
The claim for compensation for injury to the right elbow
80. On balance, we prefer Dr McGill’s evidence about the contribution of Mr Flinn’s AQIS work to the osteoarthritis in his right elbow to that of Professor Sambrook.
81. Both doctors agree that constitutional osteoarthritis is typically symmetrical. They also agree that it is uncommon in the elbow (Professor Sambrook described it as “rare”).
82. Professor Sambrook concludes, from the fact that constitutional osteoarthritis of the elbow is uncommon, that occupational factors must largely explain its presence in Mr Flinn’s left elbow, and he attributes 80% to those factors.
83. A difficulty we see with Professor Sambrook’s approach is that it is not clear why it follows, from the fact that constitutional osteoarthritis is uncommon in the elbow that, when it does present, it should be largely attributable to occupational factors. A particular difficulty is that Professor Sambrook reached his conclusion without evidence of the extent of any osteoarthritis in Mr Flinn’s left elbow. He did not examine x-rays of the elbows, and the MRI which he did examine was of the right elbow only. In our view, this must undermine his approach and his conclusion.
84. Dr McGill found symmetrical, bilateral osteoarthritis in Mr Flinn’s elbows as well as symmetrical restriction of motion. As there is no evidence of overuse of Mr Flinn’s left elbow, in our view these findings support the conclusion that constitutional osteoarthritis is present in both elbows. It also discounts any role of occupational factors other than in causing painful symptoms from time to time.
85. We are satisfied that the osteoarthritis in Mr Flinn’s right elbow is attributable overwhelmingly to constitutional factors. To the extent that his employment affected the condition, it was not to a material degree.
86. We prefer Dr McGill’s evidence that activity of the kind that Mr Flinn was engaged in can cause painful symptoms from time to time but would not affect the underlying pathology or progression of the disease. We are satisfied it did not cause or aggravate the condition within the meaning of the Act. It follows that the effects of any condition for which the respondent was liable had ceased by 11 February 2008.
The claim for compensation for injury to the right hand
87. The degree of materiality of contribution might be expressed in various ways and undue reliance should not be placed on a numerical quantification. Nevertheless, depending how it is arrived at, an assessment in percentage terms can be a useful guide.
88. Professor Sambrook attributed 25% of Mr Flinn’s work-related osteoarthritis in the right hand to the AQIS work, based on approximately 9 out of 37 working years spent on AQIS and farm work respectively. As he attributed 20% of his osteoarthritis in the hand to work activity, he arrived at a 5% contribution by the AQIS work.
89. Dr McGill initially attributed 9/10 of Mr Flinn’s work-related osteoarthritis to farm work and 1/10 to AQIS work. He reached this conclusion by reference to the x-ray evidence of symmetrical bilateral change, and making what he conceded was a guess, taking into account the relative years and hours worked, and the force involved, in each type of work. Now, having seen the DVD, Dr McGill now believes the AQIS work made no contribution at all, based on the kind of activity involved.
90. We prefer Dr McGill’s approach, because it attempts to take into account the force involved in the various work activities, over Professor Sambrook’s mathematical approach. However, even if we accept Professor Sambrook’s approach, we are not satisfied that Mr Flinn’s employment at AQIS contributed in a material degree to the osteoarthritis in his right hand.
91. The medical evidence, which we accept, is that a range of factors has contributed to Mr Flinn’s osteoarthritis in the hand. He was in his 50s when he started work at AQIS and when he started experiencing symptoms, and the evidence is that constitutional osteoarthritis is common in the hand and increases with age. He had done farm work for nearly 30 years when he started at AQIS and continued to do some farm work; and his AQIS work contributed to the condition.
92. We are satisfied that Mr Flinn’s employment at AQIS made a contribution to the osteoarthritis in his right hand. However, considered in light of Mr Flinn’s background, we are not satisfied that a contribution which is assessed, at it highest, to be 5%, is a contribution in a material degree.
Conclusion
93. For the reasons set out above, the Tribunal:
(i)affirms Comcare’s decision to deny liability under ss 24 and 27 for injury to Mr Flinn’s right hand;
(ii)affirms Comcare’s decision to deny liability under ss 16 and 19 for injury to Mr Flinn’s right elbow;
(iii)affirms Comcare’s decision to deny liability under ss 24 and 27 for injury to Mr Flinn’s right elbow;
(iv)affirms Comcare’s decision to deny liability for injury to Mr Flinn’s left elbow;
(v)affirms Comcare’s decision to deny liability for injury to Mr Flinn’s cervical spine.
I certify that the 93 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill Toohey and Dr Ion AlexanderSigned: ...............[sgd]..............................................................
Diana Weston AssociateDate of Hearing 23 August 2010, 24 August 2010 and 25 August 2010
Date of Decision 5 October 2010
Representative for the Applicant Mr Grant Watson, T D Kelly & Co.
Counsel for the Applicant: Mr John Mrsic
Representative for the Respondent: Ms Robyn Kathner, AGS
Counsel for the Respondent: Mr David Richards
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