Frank Fletcher and Comcare
[2015] AATA 430
•18 June 2015
[2015] AATA 430
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/6711
Re
Frank Fletcher
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 18 June 2015 Place Canberra The reviewable decision dated 19 November 2013 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for aggravation of his bilateral forearm condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
............................[sgd]...........................................
Gary Humphries
Deputy PresidentCatchwords
COMPENSATION – Commonwealth employees – bilateral forearm condition – whether employment contributed to a significant degree – whether aggravation – whether applicant has a compensable injury as defined by the Safety, Rehabilitation and Compensation Act 1988 – decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Colombo and Australian Postal Corporation [2015] AATA 10
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Huynh and Australian Postal Corporation [2015] AATA 235
Mellor v Australian Postal Corporation [2009] FCA 504
Mellor and Australian Postal Corporation [2010] AATA 502
Popovski v Ericsson Australia Pty Ltd [1998] VSC 61
Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Holbrook and Australian Postal Commission (1983) 5 ALN N46
Tippett v Australian Postal Corporation (1998) 27 AAR 40Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Gary Humphries, Deputy President
18 June 2015
Decision under review
This decision under review is a decision of Comcare dated 19 November 2013 (affirming a determination dated 28 October 2013) that Comcare was not liable to pay compensation to Mr Fletcher under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to a condition then described as “unspecified injury to elbow, wrist, forearm (forearm only) (bilateral)” and “epicondylitis bilateral medial”.
Background
Frank Fletcher is a fit, active man with a long history of employment in the public service. He has however developed a painful condition affecting his forearms and hands. Doctors described his condition as a combination of “tennis elbow” and “golfer’s elbow”.
I adopt the facts of this matter as set out in the primary determination. Mr Fletcher submitted a claim for workers’ compensation dated 21 August 2013 for ‘soft tissue trauma to left and right forearms and epicondylitis bilateral medial’. It was contended that this condition arose following an exercise program involving weight lifting at a gymnasium. Mr Fletcher first sought medical treatment from Dr Meredith Pfohl on 13 May 2013 whilst employed as an Assistant Director at the Department of Climate Change and Energy Efficiency.
On 28 October 2013, Comcare denied liability for the claimed condition as the delegate was not satisfied that Mr Fletcher’s employment significantly contributed. On 1 November 2013, Mr Fletcher requested a reconsideration of that determination. Mr Fletcher also indicated that his claim was for an aggravation injury, sustained on his return to work on 29 July 2013. On 19 November 2013, Comcare affirmed the determination of 28 October 2013 and added that Comcare is not liable for the claimed aggravation injury.
In December 2013, Mr Fletcher lodged an application in the Administrative Appeals Tribunal to review this decision.
The issues
The parties before the Tribunal agreed that there were two issues on which these proceedings turn:
1.Did Mr Fletcher’s Commonwealth employment contribute, to a significant degree, to his bilateral forearm condition?
2.Did Mr Fletcher’s Commonwealth employment contribute, to a significant degree, to an aggravation of his bilateral forearm condition?
If the answer to either question is yes, Mr Fletcher is prima facie entitled, under s 14 of the Act, to compensation for any incapacity for work or impairment resulting from the condition.
Did Mr Fletcher’s employment contribute to his condition?
The applicable law
The relevant provisions of the Act are as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
...
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.
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).
Section 14 is the operative provision of the Act’s compensation function:
(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.
Terminology
I have referred already to Mr Fletcher suffering from a condition, but throughout the Tribunal hearing it was referred to as an injury. The interpretation provisions above show that it might equally be described as a disease (injury means… a disease suffered by an employee: s 5A) or an ailment (disease means … an ailment suffered by an employee: s 5B). I accept the Respondent’s contention that the term ailment is most technically appropriate in this instance, but the case law most commonly uses the term injury, and so shall I in this context.
The effect of the provisions quoted above, read together, is that an employee must establish that his injury, or an aggravation of an injury, was contributed to, to a significant degree, by the employee’s employment by the Commonwealth. As indicated above, in this instance Mr Fletcher claims he has suffered an injury which was contributed to to a significant degree by his government employment. In this decision I will refer to this claimed injury as the original injury. He claims in the alternative that if his original injury is found not to have been contributed to to a significant degree by his government employment, then an aggravation to that original injury was significantly contributed to by his government employment. I refer to this as the aggravation.
The Medical Evidence
Section 7(4) of the Act provides that an employee shall be taken to have sustained an injury, being a disease, or an aggravation of disease, on the day when:… the employee first sought medical treatment for the disease, or aggravation… In his Claim for Workers’ Compensation completed in August 2013, Mr Fletcher answered the question When were you injured or when did you first notice you were ill? with the date 25/4/2013. However, for the purposes of the present proceedings, it was accepted that Mr Fletcher was deemed to have sustained the claimed original injury on 21 May 2013, being the day on which he presented to his GP, Dr Sharma.
He reported to his osteopath on the same day, reporting soreness in his forearm, numbness in his hands and tingling up and around his elbow. According to the osteopath’s notes, this problem “[h]as been ongoing for about two weeks…” Mr Fletcher was given time off work. Over subsequent weeks he consulted his osteopath and Dr Sharma, and sought relief from Chinese massage and acupuncture, in relation to this pain.
From 15 June 2013 Mr Fletcher and his wife took six weeks leave overseas. According to his evidence, his pain symptoms eased considerably as the holiday progressed, and he was largely – though not totally – symptom-free by the time he returned to work at the Department of Industry on 29 July 2013.
On his return to work he reported that pain associated with using his keyboard and his mouse escalated quickly. He recounted “[b]y the end of my second day back at work the discomfort started to return and I went to see my doctor”.
Various versions of the diagnosis of Mr Fletcher's injury were offered in the evidence. Dr Eaton diagnosed
Initial bilateral, flexor and extensor complex musculoligamentous strain, lateral epicondylitis and medial epicondylitis resulting in bilateral upper limb pain and dysfunction.
Dr Vecchio diagnosed
Bilateral, common extensor origin tendinitis and common flexor origin tendinitis (lateral epicondylitis and medial epicondylitis).
Various descriptions of the condition in his arms and hands were used by his GP and physiotherapists. I do not regard the divergence in these descriptions as significant; they all point to a painful and debilitating persistent condition.
Mr Fletcher concedes that issues related to his neck, shoulders and arms well predate 21 May 2013, the deemed date of the original injury. He presented to his osteopath "for issues involving pins and needles in my left arm on 21 August 2008" and subsequently during 2008. Mr Fletcher also joined and regularly used a gym from August 2012. The tendered documentation demonstrates a link between his activities at the gym and some occurrence of pain in 2012 and 2013. That linkage was noted by the osteopath and subsequently by Dr Sharma, and no doubt reflects Mr Fletcher's contemporaneous account of what had brought the pain about.
In August 2012, for example, the osteopath noted that Mr Fletcher was lifting "more weights at the gym", and subsequent consultations focused on the neck and left shoulder pain. On 19 December 2012 he was advised to not completely avoid shoulder exercises, but "find what hurts it, and back off, or lighten the load".
The suggestion that Mr Fletcher's pain was linked to his gym activities is reinforced by notes of his visit to Capital Clinic Manipulative and Sports Physio Centre on 13 May 2013:
Ceased x3 ICA 3/12 → forearms improved to 80% R 2/12 ago started heavier weights @ gym → P returned.
On 21 May 2013, he presented to his GP, Dr Sharma. She recorded these details of his condition that day:
Sore arsm [sic] forearm for a few weeks with numbness + tingling in hands + forearms also. Clicking also left forearm doing heavier wts at gym with subsequent pain
o/e stiffness movements esp lateral with tenderness wirsts [sic] + bilateral epicondyles also good ROM at elbow + wrist also
He saw his physiotherapist and osteopath on several occasions during this period, and the intensity of his discomfort led him to taking periods of time off work. During this period he also discontinued his visits to the gym.
Both Dr Eaton and Dr Vecchio commented on the extent to which Mr Fletcher's original injury might be related to the activities he undertook as part of his employment. Dr Eaton was clear that the occurrence of pain was linked to keyboarding and mouse activity on Mr Fletcher's return from holidays in July 2013:
I believe that the amount of repetitive computer duties performed in the first few days after returning from leave… could have conceivably caused an increase in upper limb pain.
On the question of whether keyboarding and mouse activity had contributed to the original injury, he is less emphatic:
Also, prior to the overseas travel, had work place activities contributed to his upper limb condition at the same time as the implicated gym activities?
It is difficult to be able to measure this objectively…
Whether the underlying pathology or severity of any structural change was directly affected by his computer duties is difficult to say.
By contrast, Dr Vecchio gave evidence that computer activities were likely to have contributed no more than "to a minor degree" to Mr Fletcher’s condition:
Gymnasium weights would be the prime initiator of this condition and only a minor contribution, exacerbatory only, with keyboard work. Keyboard use is often implicated but the evidence for this is lacking; it is weighted, forceful or resisted loading which is more likely the initiator of the condition. As keyboard use requires competent extensor muscle, and this use causes recurrence of the discomfort, the client rationally connects ongoing problems with the keyboard. In reality this is not aetiological, and merely an expression of the function of the muscle, and the ongoing pain originating from the tendon origin.
Consideration
The accounts in the various clinical notes which link Mr Fletcher's condition with his activities at the gym reflect his belief at that time that his condition had been caused by lifting heavy weights at the gym. His claim for this compensation, lodged on 21 August 2013, reflects that belief. In it he answers the question What were you doing at the time you injured or contracted your illness? with
Following an exercise program involving weight lifting. I noticed increasing discomfort over a period of a few weeks.
He gave evidence at the hearing that he subsequently changed his mind about the causes of his original injury, based in part on legal advice. He asserted that it was “open to the Tribunal” to find that his injury was due, to a significant degree, to his employment in the Commonwealth public service. The inconsistency between this position before the Tribunal and his earlier accounts of the origins of his condition were used by the Respondent to suggest that Mr Fletcher was not a “witness of credit”, with the implication that some of his evidence had been tailored to support his “revised” claim.
I do accept that proposition. Mr Fletcher presented as a careful and diligent applicant, taking into account the challenge of being unrepresented before the Tribunal. There were certainly inconsistencies in the evidence, but I am satisfied these do no more than reflect his conviction that, given the inability of medical science to show conclusively what might have caused a particular injury, and his own emerging doubt about the origin of his particular affliction, he was entitled to put this possibility before the Tribunal. In this respect I note that the opinion of doctors in cases such as this as to the causes of injury will always to some extent be speculative, and will rely to a greater or lesser degree on a patient's description of how their injury might have come about.
It is one thing, however, to place a contention before the tribunal; it is quite another to discharge the responsibility which falls on a party doing so to show that the contention is true. In Eckersley and Minister for Capital Territory (1979) 2 ALD 303 the Tribunal commented that when either party raises a specific fact for consideration, it may well be that the responsibility for proving the existence of that fact falls on the party who asserts its existence. The “onus” which this places on a party was summarised in Holbrook and Australian Postal Commission (1983) 5 ALN N46 as "he who asserts, or who seeks a result, must prove".
With respect to the original injury, Mr Fletcher has not reached this threshold. He pointed to a long history of keyboard and mouse usage in Commonwealth service, and cited publications appearing to demonstrate that intensive activity of this description over extended periods can lead to a condition of the kind he now suffers from. However, his evidence amounts, at its highest, to the possibility of a significant causal connection between his work and his condition. Weighing against that possibility is both the evidence of a contemporaneous activity which undeniably caused him pain (his gym activity) and the evidence of Dr Vecchio that keyboard activity is highly unlikely to have contributed any more than "to a minor degree" to his original injury. The mere possibility of a causal connection, in the absence of other evidence, does not satisfy the legislative test of his employment contributing, to a significant degree, to his injury.
Accordingly, I find that there is insufficient evidence to establish that Mr Fletcher’s Commonwealth employment contributed, to a significant degree, to his bilateral forearm condition, and that the original decision of Comcare on this question should stand.
Did Mr Fletcher’s employment contribute to an aggravation of his condition?
The applicable law
If it is accepted that factors other than his employment were the origin of Mr Fletcher’s bilateral forearm condition, it is open to the Tribunal to find that his Commonwealth employment aggravated that condition, and that compensation is payable under s 14 for that aggravation. The seminal decision on what constitutes the proper test of aggravation of a pre-existing condition is Federal Broom Co Pty Ltd v Semlitch(1964) 110 CLR 626. The High Court there considered the definition of injury in s 6(1) of the Workers’ Compensation Act 1926-1960 (NSW) which was relevantly defined as including the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration.
The High Court, led in this judgment by Kitto J, adopted a dictionary meaning of the word exacerbation as “a temporary increase in the violence of the symptoms of a disease” and decided the word exacerbation...“[a]s applied to a disease… is properly used to refer to the effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development” (at 634).
Kitto J quoted with approval the test applied by Moffit J in the court below:
There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism (at 635).
Kitto J offered this analogy...
Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound (at 635).
The Full Federal Court in Commonwealth v Beattie (1981) 35 ALR 369 decided an appeal involving the Compensation (Commonwealth Government Employees) Act 1971 and referred extensively to the decision in Federal Broom. The Court discussed the definition of injury, as it then appeared in s 5 of that Act, which was defined as any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to s 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease.
The Court did not consider that the absence of the word exacerbate from the legislation was of significance. It relied (at 377-378) on a dictionary definition of the word aggravate and was satisfied that a synonym for exacerbate is to aggravate, and exacerbation is the increase in severity of disease or suffering. The secondary meaning of aggravation is an increasing, or being increased, in gravity or seriousness. It also means the action of irritating. The Court was satisfied that:
the word “exacerbate” in the Federal Broom case applies with equal force in relation to the word “aggravate” in the context in which it is used in the legislation here.(at 378)
Notwithstanding that the legislation considered in that case was different to that in Federal Broom, the Full Court in Beattie found ... that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place. The Full Court adopted the decision of Kitto J in Federal Broom and decided
…there can be cases where there will be an exacerbation – and thus in our view an aggravation – of a previously existing injury by activity which increases or precipitates pain. Rubbing salt into a wound, the example taken by Kitto J., is but an instance of this.
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place (at 378).
In Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 the Federal Court referred to Federal Broom and Beattie and decided that symptoms of a disease are part of the disease:
It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity (at 180).
The decision in Beattie was followed in Tippett v Australian Postal Corporation (1998) 27 AAR 40 and Mellor v Australian Postal Corporation[2009] FCA 504.
In Wiegand v ComcareAustralia[2002] FCA 1464, von Doussa J, when considering the definition of disease in s 5B of the Act decided at [21]:
I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of this case both expressions convey the same notion, namely that the depression became worse. It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors. It is not the vulnerability that constitutes or may constitute an aggravation. The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.
His Honour concluded:
All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee....
Most recently, the applicant in Huynh and Australian Postal Corporation [2015] AATA 235 was found by the Tribunal to have suffered an aggravation or exacerbation of an ailment affecting his feet, the aggravation being attributable to the requirement of his work to spend long periods standing and walking, a causal linkage confirmed by all the medical witnesses.
The above authorities suggest that pain brought on by work-related activity may amount to an aggravation of a pre-existing, non-work related condition, notwithstanding that the pathology of that condition is not itself worsened by that aggravation. Thus:
·A sportsman whose pre-existing rotator cuff injury was made more painful by work-related repetitive gear changing in a van had suffered an “injury”: Tippett;
·An office worker with an existing groin strain suffered an “injury” when her work activities aggravated the groin pain: Beattie; and
·A postal worker with underlying spinal conditions was held to have suffered a compensable “aggravation” because his work activities made those conditions temporarily symptomatic: Mellor and Australian Postal Corporation [2010] AATA 502.
These authorities were cited and applied in Colombo and Australian Postal Corporation [2015] AATA 10, though there the Tribunal found that there was insufficient evidence of a significant causal connection between the applicant’s work and the shoulder pain he experienced while at work.
The degree of the causal connection needs to be considered. Pursuant to the amendments to the Act of 2007, which added s 5B with effect from 13 April 2007, the degree of contribution by the employment must be significant. Section 5B(3) unhelpfully defines significant degree to be a degree that is substantially more than material. A number of matters listed in s 5B(2) need also to be considered when deciding whether the contribution has reached the requisite threshold. The list is not exhaustive.
It must be said that the criteria listed in s 5B(2) complicate the task of a decision maker. In determining whether an aggravation has been contributed to by an employee’s employment, the decision maker needs to consider “any predisposition of the employee to the ailment or aggravation” and “any activities of the employee not related to the employment”. At one level, this seems to contradict the scheme of the legislation that an entitlement to compensation arises where employment makes worse a non-work related condition. In one sense, it could be said that every employee afflicted in this way necessarily has some “predisposition… to the… aggravation”. The criterion “any activities of the employee not related to the employment” might in turn be thought to require that an employee suffering a vulnerability (per von Doussa J in Wiegand) arising from a congenital condition is entitled to compensation, while an employee vulnerable because of, say, a sporting injury is not.
Certainly compensation is not payable in respect of an injury that is intentionally self-inflicted (s 14(2)), so perhaps s 5B(2) is intended to introduce the concept that an employee ought not to recklessly create a predisposition to an aggravation of an existing condition. I find that it is not necessary, however, to resolve this question for the purposes of determining the present matter.
Prior to the 2007 amendments the Act imposed a degree of contribution by employment to an ailment or the aggravation of it as material. The legislative intention of the amendments is that the threshold for the degree of contribution should be raised from the previous threshold.
In Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 Ashley J considered the meaning of a significant contributing factor as it appeared in the Victorian Accident Compensation Act 1985. He examined, and approved of, the test articulated in an unreported decision of Strong J in Allman v Major Furnace and Engineering Pty Ltd (14 March 1997), where His Honour referred to a dictionary definition of the word significant – of considerable amount or effect – and concluded that significant was intended to emphasise that workplace injuries will be compensable only if there is a strong connection between work and the injury. In doing so, Ashley J contrasted this test with that of Rendit J in another unreported decision, Meddis v Victorian WorkCover Authority (24 April 1996), where the latter decided that the words ‘significant contributing factor’ mean
… more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact.
Ashley J concluded:
It remains only to say that, at a practical as distinct from a conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real (at [61]).
Consideration
At which end of this judicial spectrum, then, does the contribution of Mr Fletcher’s employment to the aggravation of his condition, if any, fall? Clearly, pain experienced at work may constitute evidence of aggravation. In this case, is it the mere incidental occurrence of pain in the context of his work – Kitto J’s fractured leg encased in plaster – or is it pain to which he would not otherwise have been exposed but for his work (per von Doussa J in Wiegand)? And is there a strong connection between work and injury (or in this case aggravation), per Ashley J in Popovski? That decision will reflect an evaluation of degree and fact.
Both doctors giving evidence here pointed to the apparently strong connection between Mr Fletcher's computer activities and the incidence of pain, particularly after his return to work from his leave. Dr Eaton reported:
Whether the underlying pathology or severity of any structural change was directly affected by his computer duties is difficult to say. However pain and dysfunction seems to have been significantly affected.
Dr Vecchio reported:
Keyboarding, by the very nature of the muscular activity required, would continue to result in the symptoms described, but not causative thereof.
Dr Vecchio responded to a question about Mr Fletcher’s prognosis by recording:
These conditions are often chronic and continue to result in symptoms as a consequence of repetitive activity.
Both doctors accepted that the incidence of pain in the context of this injury would most likely be "long-lasting". Dr Eaton thought that pain would be an “ongoing issue” for Mr Fletcher, though its severity may fluctuate.
In my assessment, the evidence points strongly to the pain in Mr Fletcher’s arms being brought on in a pronounced way by his use of a keyboard and mouse in the context of his employment. He gave credible evidence that his keyboard and mouse use at work was typically intensive, and that he did not have access to dictation software until 2014. His (largely uncontradicted) evidence was that, in the period since his return from leave in July 2013, the onset of pain occurred quickly after the intensive keyboard and mouse work which characterises his Commonwealth employment. He showed that, while a part of his working day typically consisted of meetings and phone calls, the great preponderance of his time at work is spent interfacing with a computer. In respect of the period 29 – 31 July 2013, he commented in his Incident Notification Report that
By the end of my second day back at work using both the mouse and keyboard for several hours each day the discomfort was back in both arms and starting to radiate up my arms from the elbows.
He gave evidence that, at this point, he had not attended the gym for some weeks, such that it could not be “implicated” in the flare-up of his pain.
I cannot find, as previously indicated, that his computer use at work was a significant cause of the underlying condition which makes him susceptible to this pain, but it would, equally, be perverse to deny that his computer work brings forth strong and persistent pain.
Evidence was led that other activities – such as gardening, driving or lifting heavy items – could bring forward similarly painful responses to Mr Fletcher’s underlying condition. Indeed, there is some suggestion in the medical reports and the clinical notes of his osteopath that he was experiencing pain from time to time when engaging in these activities. However, there was also evidence that he took steps to avoid domestic activities which gave rise to pain; his capacity to do so in the work context was more limited. He reported that keyboard and mouse use at work produced a strong and painful response in his arms and hands. In his Statement of Facts, Issues and Contentions Mr Fletcher asserts:
The only sustained activity on my return from overseas…, that is the only factor that could have materially contributed to the aggravation of the injury, was computer use at work.
Although this was not cogently presented to the Tribunal, I accept that Mr Fletcher in fact avoided other activities which brought on pain, leaving the mouse and keyboard use which was an unavoidable feature of his employment as the chief agent in the production of his painful condition. He took steps to avoid this pain too, with modifications to his work station and the use of dictation technology, with some success, but the pain has recurred as limitations on these arrangements have been encountered. The association between incapacity and the circumstances of his work is precisely what is targeted in s 14 of the Act.
I find that Mr Fletcher’s employment therefore did contribute in a degree which was significant to the aggravation of his vulnerable condition. I am satisfied and find as a fact that the experience and level of pain existing at the end of working ordinary hours, and the effect of it, incapacitates him. This decision of Comcare dated 19 November 2013 is set aside, and in its place a decision is substituted that Comcare is liable to pay compensation to Mr Fletcher under s 14 of the Safety, Rehabilitation and Compensation Act 1988 in relation to the condition “unspecified injury to elbow, wrist, forearm (forearm only) (bilateral)” and “epicondylitis bilateral medial”.
I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of ...............................[sgd].........................................
Associate
Dated 18 June 2015
Date(s) of hearing 17 April 2015 Applicant In person Counsel for the Respondent Peter Woulfe Solicitors for the Respondent Sparke Helmore
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