Fuller and Comcare (Compensation)

[2017] AATA 884

Fuller and Comcare (Compensation) [2017] AATA 884 (2 February 2017)

Division:GENERAL DIVISION

File Number:           2015/6350

Re:Kelly Fuller

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:2 February 2017

Place:Sydney

The decision under review is affirmed.

...............[sgd].........................................................

Senior Member A Poljak

CATCHWORDS

Workers Compensation - entitlement to compensation for injury - mild ulnar neuritis and triangular fibrocartilage tear - whether ailment contributed to, to a significant degree, by applicant's employment - conflicting medical evidence - decision affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B, 14(1)

REASONS FOR DECISION

Senior Member A Poljak

2 February 2017

1. The applicant, commenced employment with the Department of Human Services on 19 April 2010. She made a claim dated 13 August 2015 for “wrist pain, extensor tendinosis, cubital tunnel syndrome, ECU and EDC tendinosis” that she claims arose out of, or was aggravated by, her work with the Department.

2. On 25 September 2015, the respondent issued a determination denying liability under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for a condition described as “lesion of ulnar nerve (cubital tunnel syndrome) (left), and other disorders of muscle, ligament and fascia (extensor carpi ulnaris tendinitis) (left)” on the basis that the applicant’s “employment was not significant in the development of this ailment”.

3. The decision was reconsidered and affirmed by the respondent on 16 November 2015. This is the decision under review in these proceedings (“the Decision”).

4. It is agreed between the parties, that the appropriate diagnosis of the condition suffered by the applicant is mild ulnar neuritis in the left upper limb and a triangular fibrocartilage tear in the left wrist (“the Condition”).

5. The respondent contends that the applicant’s condition was not significantly contributed to by her employment but was caused and/or significantly contributed to by her moving house three weeks prior to reporting the injury.

   RELEVANT LEGISLATION

6. Subsection 14(1) of the Act provides:

   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.

7. In subsection 5A(1) injury is defined to mean, in part:

   (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

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment…..

8. Subsection 5B(1) defines disease as:

   (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.

9. Ailment is defined in subsection 4(1) as:

   any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

10. Sub-section 5B(3) adds that “a significant degree” means “a degree that is substantially more than material”. It is possible a number of factors might make a contribution that is “substantially more than material”.

    BACKGROUND

11. The Applicant is currently employed by the Department as a Technical Support Officer (supervisory role) which she commenced in September 2014. Prior to this she was employed as a Services Officer. Her role required her to deal with customers and use a keyboard and mouse throughout the working day. At hearing she advised that although she deals with customers her role is mainly data entry and updating customer records on the computer. She says that from September 2014, two systems were adopted which required her to use the index and middle finger of her left hand to shift through the systems and scroll through the screens frequently while she entered data.

12. In the applicant’s statement of evidence dated 12 January 2016, she states that she doesn’t recall a specific event or incident that caused her current condition. Rather, she states that it began as a slow ache that increased with time. The ache began in her left wrist and her first two knuckles (pointer and index fingers) on her left hand.

13. On 5 March 2015 the applicant moved house. She took five days off work and states that she used a professional removalist for the move. A receipt from the removal company, ‘Move-It Furniture Removal’, has been provided. Her oral evidence was that prior to moving, her daughter packed and boxed all of the household effects. She says she supervised the move and only unpacked small items such as ornaments, photos, DVDs and clothing.

14. In her Claim for Workers Compensation dated 13 August 2015, the applicant recorded the date of injury or when she first noticed her symptoms as 27 March 2015.

    RELEVANT MEDICAL EVIDENCE AND CONSIDERATION

    Triangular fibrocartilage tear in the left wrist

15. On 27 March 2015, Dr Allen records in his consultation notes that the applicant had “aching in both hands past few months”. As a result of this consultation the applicant was sent for blood tests and x-rays. At hearing she advised that she had no time off work and resumed her normal duties. A week later the applicant again saw Dr Allen and was referred to Dr Wong, rheumatologist.

16. In the Patient Health Summary, the consultation notes and investigation request of Dr Allen on 18 May 2015 record “worsening pain in hands past three months”. This record indicates that the applicant’s pain in her hands had worsened since early March 2015.

17. In the Patient Health Summary on 29 May 2015, Dr Ashmita Adhikari recorded, “left wrist and second finger increasingly painful, started in March”, “though[t] she had sprained it when moving”, “did not improve so went to see Dr”.

18. Dr Sandra McBurnie, consultant occupational physician, states in her report dated 22 September 2015, that the applicant reported a gradual onset of pain commencing in March 2015. She notes that in the documentation provided, the applicant had recreational leave on 5, 6, 9, 10 and 11 of March 2015 while she moved house, which was confirmed by the applicant during assessment. Dr McBurnie relevantly states in her report, that “despite relative rest at work and at home the [applicant’s] symptoms have not improved” and opines that the main contributing factor to the development of the conditions is the “increased use of her upper limb while moving house”.

19. In an Ergonomic Assessment Report (Injury Related) dated 10 June 2015, consultant Christine Eggleton said that the applicant reported that “in March 2015 she began experiencing aching all of a sudden in her left wrist and hand, which did not resolve”. The applicant “could not identify a specific incident that triggered aching to occur”.

20. Dr Bodel, Orthopaedic Surgeon, states in his report dated 23 March 2016, that based on the history given by the applicant he found that moving house was not a contributing factor because she was not involved with any physical activities. The history given by the applicant to Dr Bodel was that she “began to develop a gradual onset of pain, during the course of her day’s work in March of 2015”. She “absolutely denies that there was any physical activity involved in her moving house and that she had others to do the move for her because of her pain”. She indicated that “there is no causal link between her moving house and the development of her symptoms”. Dr Bodel says in his report that he agreed with that history on the basis of the evidence given.

21. In a supplementary report dated 29 March 2016, Dr Bodel confirms that “based on history given, it is my view clinically that on the balance of probabilities, this lady has developed her “injury” as a consequence of the nature and conditions of her work that there are no other contributing factors”. He further opined that “the nature and conditions of work, in particular the reaching work, has caused injury by way of aggravation to these conditions in the upper limb”.

22. Dr Bodel reiterated at hearing that he relied on the history given to him by the applicant. He fully accepted what the applicant said in regards to her involvement in moving house in March 2015 and as such found that the only contributing factor to her symptoms must have been due to the nature and conditions of her work. This however is not consistent with a number of clinical notes, the opinion of Professor Youssef and the findings in the MRI report dated 18 September 2015.

23. The MRI of the left wrist performed on 18 September 2015, reported the presence of a complex tear in the triangular fibrocartilage centrally and that there is evidence of extrinsic material lying between the triangular fibrocartilage and the triquetral. It is reported that there is a small distal radioulnar effusion but no significant synovitis.

24. Professor Youssef states in his report dated 17 March 2016:

    … [I]t is documented that there was a small distal radioulnar effusion. There was also evidence of extrinsic material lying between the triangular fibrocartilage and the triquetral raising the possibility of avulsion or delamination from the cartilage. Although I am not a radiologist, this finding would appear to also suggest a traumatic cause. Furthermore, a traumatic cause is more likely because the non-dominant hand has been affected whereas one would expect a degenerative cause to more severely affect the dominant hand… Degenerative tears usually involve the central triangular cartilage near the radial attachment and are common in middle-aged or older individuals. Manual activities that may stress the wrist and cause chronic ulnar wrist pain from degeneration of the triangular fibrocartilage include carpenters and plumbers. Her work tasks are not such that they would increase the risk of degeneration of the triangular fibrocartilage or cause symptoms arising from the triangular fibrocartilage.

25. Professor Youssef further opined in his report that he does not consider the applicant’s employment caused the conditions which are likely to be traumatic. He states that he is:

    “not surprised that she is symptomatic at work with using the left hand. She is also symptomatic when she is not at work and uses the left hand. Furthermore, her duties have been light for several months with avoidance of keyboarding with the left hand and yet her symptoms have continued. This makes work an unlikely contributor to her symptoms as one would have expected the symptoms to have settled if they were mainly due to her work”.

26. At hearing, Professor Youssef said that he was unaware of the association of typing to the tear suffered by the applicant. He said that it is a “forceful gripping injury” and that work would not contribute to the pathology. He said that he was aware that the applicant moved house around the time the symptoms developed but advised that he could not get an exact history from the applicant in this regard. He opined that carrying and lifting heavy boxes could result in the type of injury suffered by the applicant. Significantly, Professor Youssef reiterated that the applicant’s presentation was consistent with a traumatic tear rather than a degenerative tear. He said this was confirmed by the radiology showing fluid in the joint.

27. At hearing, Dr Bodel agreed with Professor Youssef that the causes of triangular fibrocartilage tear were either degenerative or traumatic and that a traumatic tear was often associated with fluid or contrast material in the distal radioulnar joint.

28. Having carefully considered all of the medical evidence before me, particularly the MRI report of 18 September 2015, I prefer the evidence of Professor Youssef over Dr Bodel in regards to the likely causes of the applicant’s condition. The applicant’s triangular fibrocartilage tear was most likely to be traumatic and not degenerative. The applicant’s work does not fit the likely mechanism of action required to cause such a condition.

    Mild ulnar neuritis in the left upper limb

29. At hearing the applicant confirmed that she first noticed pain in her left elbow in June 2015 and that she knocked her left elbow on the corner of a kitchen bench prior to undergoing a MRI in November 2015.

30. The MRI report of 17 November 2015, it is recorded that there was “soft tissue swelling superficial to the ulnar nerve adjacent to the medial epicondyle suggesting possible soft tissue trauma”. The ultrasound of the left elbow undertaken on 30 September 2015 showed “focal thickening… in the ulnar nerve at the cubital tunnel”.

31. Nerve conduction studies show no electrophysiological evidence of median, ulnar or radial nerve conduction abnormalities in the test done on 22 October 2015. I note that this does not exclude a diagnosis of ulnar neuritis.

32. Dr Bodel gave evidence at hearing that ulnar neuritis could be a result of an inflammatory response, trauma, swelling of surrounding soft tissue and less commonly arthritis. He said that the condition could be related to the applicant’s work and that typing could be implicated as the cause; however he provided no literature to support this opinion. He did also state that rheumatological factors could be the cause of the applicant’s clinical presentation but was unlikely to cause the mass on the left elbow identified in the MRI.

33. Alternatively, Professor Youssef was of the opinion that it was difficult to determine the cause of the applicant’s ulnar neuritis given the history she provided. He said that the condition usually resulted from significant repetitive stretching or significant degeneration and was not usually related to work. He said that it was most likely soft tissue pressure causing the compression on the nerve and that there was no evidence of degeneration in the elbow shown in the MRI. He said that the radiology suggesting the presence of a soft tissue mass and oedema were indicative of a traumatic injury to the elbow and that this was the likely cause of the ulnar neuritis.

34. Dr Bodel and Professor Youssef offer no definitive opinion as to the cause of the applicant’s ulnar neuritis. It is clear that the history given by the applicant in this regard is unclear. Having considered the medical evidence before me, in particular the MRI report of 17 November 2015, I find that the most likely cause of the applicant’s ulnar neuritis is soft tissue swelling or pressure from a soft tissue mass. In any event, there is no evidence in the radiology of degeneration in the elbow. Her injury is most likely traumatic. At hearing she stated that she knocked her elbow on the corner of the kitchen bench prior to undergoing the MRI in November 2015, this may be an obvious explanation for the tissue swelling reported in the MRI report, however there is no need for me to determine the likely mechanism of injury in these proceedings.

    DECISION

35. The evidence suggests that the applicant may have suffered some sort of injury while moving house in early March 2015 and that this caused or significantly contributed to her conditions. For the purpose of my determination in these proceedings, it is not necessary for me to make a specific finding about this. But it is plain from the majority of the medical evidence before me, that the applicant’s symptoms and the first report of injury occurred in or around March 2015.

36. I am satisfied that the applicant’s triangular fibrocartilage tear in the left wrist was a traumatic tear and that the ulnar neuritis of the left elbow is a post-traumatic injury. The applicant’s work does not fit the likely mechanism of action required to cause the applicant’s conditions.

37. The decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

............[sgd]............................................................

Associate

Dated: 2 February 2017

Dates of hearing:	15-16 November 2016
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	Mr M Snell
Solicitors for the Respondent:	Lehmann Snell Lawyers