Ghaddar and Comcare (Compensation)

Ghaddar and Comcare (Compensation) [2019] AATA 1093 (3 June 2019)
Division:General Division
File Number(s): 2017/1973
Re:Jomana Ghaddar
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:3 June 2019
Place:Sydney

The reviewable decision, being the decision made by Comcare on 17 March 2017 denying liability to compensate Ms Ghaddar in respect of her claim for “pain/swelling in supraclavicular region”, is affirmed.
..........................[sgd]..............................................
Deputy President J W Constance
CATCHWORDS
WORKERS' COMPENSATION - application for review of decision to deny liability to compensate for pain/swelling in supraclavicular region – whether ailment “contributed to, to a significant degree”, by Applicant’s employment – where Applicant suffered from acute brachial neuritis caused by infection unrelated to working conditions – whether Applicant suffered “injury” in the primary sense – materiality of suddenness to determination of whether injury other than a disease has been suffered – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
SECONDARY MATERIALS
G W Misamore and D E Lehman, ‘Parsonage-Turner Syndrome [Acute Brachial Neuritis]’, Journal of Bone and Joint Surgery vol. 78, September 1996, pp. 1405-1408
N van Alfen and B van Engelen, ‘The clinical spectrum of neuralgic amyotrophy in 246 cases’, Brain vol. 129(2), February 2006, pp. 438-450
REASONS FOR DECISION
Deputy President J W Constance
3 June 2019
INTRODUCTION

Ms Ghaddar claims she suffered an injury to her left shoulder while working for the Department of Immigration and Border Protection in 2016. In her claim for compensation, made under the Safety, Rehabilitation and Compensation Act 1988 (Cth), she described the condition as “pain/swelling in supraclavicular region”.[1]
[1] Exhibit R1 at 15.
Ms Ghaddar relies on medical evidence that her condition is a musculoligamentous injury resulting from repetitive computer keyboard use as part of her employment duties. Comcare contends that Ms Ghaddar suffered from brachial neuritis caused by an infection unrelated to her working conditions.
By a decision made on 17 March 2017[2] (the reviewable decision), Comcare affirmed its earlier determination denying liability to compensate Ms Ghaddar in respect of the claimed condition. Ms Ghaddar has applied to the Tribunal for review of the reviewable decision.
[2] Exhibit R1 at 210.
For the reasons which follow, the reviewable decision will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Ms Ghaddar. I am satisfied of the facts found on the balance of probabilities.
Ms Ghaddar provided a statement dated 19 September 2017[3] and gave evidence at the hearing.
[3] Exhibit A1.
Ms Ghaddar commenced employment with the Department of Immigration and Border Protection in 2004. Since 2007 she has worked at one of the Department’s immigration detention facilities and, since late 2010, has worked three days per week.
Ms Ghaddar described the nature of her work as follows:
4. My role at the Detention Centre was a Case Manager and Removals Officer. I would interview clients when they first arrive for about 10-20 minutes. I would then go to my desk and scan the forms and enter the data. I attach them to their electronic file. I then do a case assessment which is an online form and a case review. I also do the new forms which were implemented before I went on leave and prepare a summary of their case on the system.
5. I then email various internal stakeholders. I have 20 or so other clients and would have to review their cases and make sure they are up to date, respond to emails from various stakeholders including the detainees, their relatives, other government departments and ministers and the AAT.
6. It is a high demand workload and we have to do a large amount of typing, keying and moving the mouse at my desk. If l don't go and see a detainee or get a new case, the whole day will be basically spent typing on my computer. We occasionally have meetings; otherwise we are sitting at the workstation and using the computer the whole day. My lunch break was 30 mins and I would try and take that as much as possible but lunch was often rushed or even spent at the workstation working through.
I accept this evidence.
In October 2013 there was a change in Ms Ghaddar’s role. She was required to do more case management work and as a result she spent more time working at her computer.
In late January or early February 2014 Ms Ghaddar began to feel increasing pain in her back, leg and knee. Her general practitioner, Dr Loutfy, suggested the condition might have been related to her employment. Ms Ghaddar raised this issue with her employer. An ergonomic assessment of her workstation was carried out and some adjustments were made.
In early May 2014 Ms Ghaddar moved to a new workstation, which she found uncomfortable. A further ergonomic assessment was performed. Ms Ghaddar was given some advice concerning self-checks but no further adjustments were made.
In late August or early September 2016 a new administrative form was introduced which increased Ms Ghaddar’s time spent using the keyboard.
Ms Ghaddar consulted her general practitioners, Drs Loutfy and Gabriel, on five occasions between 12 August 2016 and 28 September 2016. On each occasion she complained of a sore throat or related condition.[4]
[4] Exhibit R1 at 73-74.
On 28 September 2016 she experienced pain in her left shoulder. The pain developed gradually during the day.
On 29 September 2016 Ms Ghaddar noticed a lump between her left shoulder and neck. She presented at the Emergency Department of Auburn Public Hospital.[5] She was advised to have an ultrasound and consult her general practitioner to arrange a blood test.
[5] Exhibit R4.
An ultrasound of Ms Ghaddar’s neck was performed on 30 September 2016. The report stated:
No discrete lesion is detected by ultrasound. There is no mass or lymphadenopathy in the neck.[6]
[6] Exhibit R1 at 93.
Ms Ghaddar consulted Dr Loutfy on 4 October 2016, who noted she had a lump in the left supraclavicular region. He diagnosed muscular spasm and referred her to a physiotherapist.[7] Dr Loutfy also noted that the results of blood tests requested on 30 September 2016, which included the level of C-reactive protein, were normal.[8]
[7] Exhibit R1 at 74-75.
[8] Exhibit R1 at 74-75.
On 5 October 2016 Ms Ghaddar consulted another general practitioner, Dr Latif, for a second opinion. The notes of that consultation record “swelling and bulky muscle area from base of neck to left upper shoulder/movements normal/throat normal In nad”.[9]
[9] Exhibit R6 at 2.
Ms Ghaddar again consulted Dr Loutfy on 10 October 2016. The clinical note of this consultation records that she was “very worreid [sic] feels something in throat”.[10] Dr Loutfy referred Ms Ghaddar for an X-ray of the lateral soft tissue of the neck, which was performed the same day. The report indicated nothing remarkable.[11]
[10] Exhibit R1 at 75.
[11] Exhibit R1 at 95.
Ms Ghaddar commenced treatment for neck and shoulder pain by Ms Wordsworth, physiotherapist, on 13 October 2016.[12]
[12] Exhibit R1 at 112.
An MRI of Ms Ghaddar’s left suprascapular region was carried out on 15 November 2016. Dr Dimmick reported that there was “[n]o significant abnormality identified to explain the patient’s clinically palpable lump”.[13]
[13] Exhibit R1 at 11.
On 28 November 2016 Ms Ghaddar consulted Dr Dalton, specialist in rehabilitation medicine, on referral by Dr Loutfy. Dr Dalton described her symptoms as “fairly typical of myofascial pain related to prolonged and repetitive data entry in the workplace”.[14]
[14] Exhibit R1 at 100.
Ms Ghaddar was on sick leave from 15 November 2016 until early February 2017. During this time she rested and continued treatment by way of physiotherapy and medication.
THE CLAIM
On 15 November 2016 Ms Ghaddar lodged her claim for compensation.[15]
[15] Exhibit R1 at 15.
In the claim form Ms Ghaddar stated that:
·the condition the subject of the claim was “pain/swelling in supraclavicular region”;
·her left arm, shoulder and neck were affected;
·she was doing “computer work – typing” when she was injured;
·she first noticed her symptoms/injury on 29 September 2016;
·the injury was a result of “repetitive typing and picking up phones, spasm in left supraclavicular”.
RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
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.
“Injury” is defined in subsection 5A(1) to mean:
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
“Disease” is defined in section 5B:
(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.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“Impairment” is also defined in subsection 4(1):
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.
MILITARY REHABILITATION AND COMPENSATION COMMISSION v MAY
In Military Rehabilitation and Compensation Commission v May[16] (May), the High Court considered the definition of “injury” in subsection 5A(1) of the Act.
[16] (2016) 257 CLR 468.
French CJ, Kiefel, Nettle and Gordon JJ in their joint reasons observed:[17]
42. The set of conditions answering the definition of “injury” in the Act relevantly comprises two sub-sets, “disease” and “injury (other than a disease)”, the latter sometimes referred to, not necessarily helpfully, as injury simpliciter. They comprise separate but related bases of liability. Each has a different meaning in the statutory scheme.
43. As appears from the definition of “disease”, a “disease” for the purposes of the Act must be an ailment or an aggravation of an ailment. That is not sufficient to establish the existence of a disease. The ailment or aggravation thereof has to have been contributed to in a material degree by the employee’s employment by the Commonwealth.
44. An “injury (other than a disease)” covers the other sub-set of “injury”. Various aspects of this limb of the definition of “injury” should be observed. First, the phrase “other than a disease” means that if an employee establishes that they have a “disease” within para (a) of the definition of “injury”, there is no need to consider para (b). Secondly, an “injury (other than a disease)” suffered by an employee must be “a physical or mental injury arising out of, or in the course of, the employee’s employment” (emphasis added). That is to say, the physical or mental injury has to have a causal or temporal connection with the employee’s employment. Thirdly, that need for a causal or temporal connection in respect of a “physical or mental injury” in para (b) directly raises the question – what does “injury” mean in that paragraph?
45. “Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something … can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word” (emphasis added).
46. That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
(Footnotes omitted; emphasis in original.)
[17] (2016) 257 CLR 468 at 479-481 [42]-[46].
THE ISSUES
The following issues arise for determination in this application:
(1)Did Ms Ghaddar suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If yes, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Department?
(3)If yes, did the injury result in “incapacity for work, or impairment”?
(4)If the answer to (1) or (2) above is “no”, did Ms Ghaddar suffer “an injury (other than a disease)”?
FURTHER EVIDENCE OF MS GHADDAR
In her statement made 19 September 2017[18] Ms Ghaddar described the circumstances at the time she first noticed the injury or its symptoms as follows:
15. On or about 27 or 28 September 2016, I noticed pain in my left shoulder. The pain came on gradually that day.
16. On Thursday 29 September, I was getting changed at home when I noticed a swollen lump between the left shoulder and the neck. I was panicked and went to Auburn Public Hospital Emergency Department. They thought there could be a problem with the lymph nodes so recommended I have an ultrasound to see my GP for a blood test.
[18] Exhibit A1 at 2.
Ms Ghaddar gave a more detailed statement of these events when she gave evidence at the hearing. When asked to relate what happened on 27 or 28 September 2016 she said, in part:
During the time at work, I think it was Tuesday the 27^th or 26^th, I felt more pain than the usual pain I was feeling … My arm was heavier and it was tighter … I’d get spasms here through my arm [Ms Ghaddar indicated to her left wrist and hand] … My shoulder just felt like it was burning and tight, extra tight.
…
I took painkillers, I had Wednesday off, and then Thursday as I was getting changed I noticed that my left shoulder was, the swelling was very high … and that’s when I reacted and I went to get some advice.[19]
[19] Transcript, 18 October 2018.
Counsel for Ms Ghaddar then asked her about the rate at which these events happened. She responded:
I think it was gradually happening but I didn’t pay attention to it as much as I should have. By me not doing that it caused that big swelling in my left shoulder but I think it gradually came and then the pain increased when I increased my workload again. So it wasn’t something that happened spontaneously like not as in I pulled something and I realised ‘oh no’. It just gradually got worse.[20]
EVIDENCE OF MEDICAL PROFESSIONALS
[20] Transcript, 18 October 2018.
Dr Low, Consultant Occupational Physician
Dr Low assessed Ms Ghaddar on 6 January 2017 at the request of Comcare.
On 11 January 2007 Dr Low reported, in part:
Ms Ghaddar has a diagnosis of acute muscular strain to the left upper shoulder girdle. This is based on history and examination today as well as the absence of any anatomical pathology identified through radiological investigations today.
…
The prognosis for an acute muscular strain is generally excellent with a full recovery expected in six to 12 weeks.
…
Ms Ghaddar remains symptomatic and as such her condition has not resolved. I would expect a resolution in symptoms in a further four weeks, given she has already been off work for some six weeks.
…
In terms of work relatedness in the absence of any other obvious cause, it is reasonable that in performing her workplace duties she may have sustained an initial injury.
…
… I consider it reasonable that Ms Ghaddar’s employment has contributed to her current acute muscular strain, however the contribution would have since ceased.[21]
[21] Exhibit R1 at 31-32.
Professor Youssef, Consultant Rheumatologist
Professor Youssef assessed Ms Ghaddar on 20 July 2017 at the request of Comcare’s solicitors. He provided a report dated 20 July 2017[22] and gave evidence at the hearing.
[22] Exhibit R2.
Professor Youssef reported, in part:
Ms Ghaddar is a 37 year old lady who developed acute left shoulder girdle pain that was described as “hot” and which was associated with paraesthesia and weakness. This was preceded by an upper respiratory tract infection. She was documented as being weak in the left shoulder girdle by Dr Seamus Dalton and told me that she also felt weak in the left shoulder associated with functional limitations.
Although she described the presence of a lump in the left suprascapular region, an ultrasound and MRI scan of this region did not find any abnormality and showed normal muscle. This lump was almost certainly not due to pathology but was an area of normal muscle made more prominent by surrounding muscle wasting.
On my examination, I found some residual wasting in the left shoulder girdle and reduced sensation in the left suprascapular region.
Her presentation is typical of acute left brachial neuritis which is otherwise known as Parsonage-Turner Syndrome … This condition resolves spontaneously in the majority of patients. Her presentation is consistent with a resolving acute brachial neuritis. There is still a sensory deficit in the left shoulder and some mild residual muscle wasting in the shoulder girdle. I would expect a complete resolution over the next few months. This condition is not a work-related disorder.
…
This condition was unrelated to any specific incident. It is a medical disorder of inflammation of the brachial plexus almost certainly caused by a preceding infection.
Professor Youssef further reported that brachial neuritis is an unusual, but well documented, condition. He included in his report articles from medical journals describing the condition. It can present with acute shoulder pain.[23] Other research indicates that, as in Ms Ghaddar’s case, about 43.5% of sufferers had a preceding infection.[24]
[23] See G W Misamore and D E Lehman, ‘Parsonage-Turner Syndrome [Acute Brachial Neuritis]’, Journal of Bone and Joint Surgery vol. 78, September 1996, pp. 1405-1408.
[24] See N van Alfen and B van Engelen, ‘The clinical spectrum of neuralgic amyotrophy in 246 cases’, Brain vol. 129(2), February 2006, pp. 438-450.
Dr Assem, Rehabilitation Specialist
Dr Assem assessed Ms Ghaddar on 4 August 2017 at the request of her solicitors. He provided reports dated 4 August 2017[25] and 1 September 2017[26] and gave evidence at the hearing.
[25] Exhibit A3.
[26] Exhibit A4.
On examining Ms Ghaddar, Dr Assem noted obvious swelling over the left upper trapezius and pain reproduced on lateral flexion of her neck to the right. A neurological examination of her upper extremities revealed normal power, tone, sensation and reflexes.[27]
[27] Exhibit A3 at 3-4.

On 4 August 2017 Dr Assem reported, in part:
She has a neck strain due to maintaining prolonged static postures for long periods whilst engaging in computer based activities. This is manifesting with myofascial pain and swelling over the left upper trapezius, levator scapula and left supraclavicular musculature. In addition, she has non-verifiable radicular symptoms at the dorsal aspect of her left arm.
…
She has a work-related overuse injury leading to chronic musculoligamentous strain to her cervical spine, upper trapezius, levator scapula and suprascapular musculature with non-verifiable radicular symptoms in her left arm.
…
Her condition is related to the nature and conditions of her employment as she is required to maintain static postures for long periods while performing constant key board activities under high levels of stress at the Villawood detention centre.
Dr Assem reviewed Professor Youssef’s report and provided his further report of 1 September 2017, wherein he stated:
I agree that there was a temporal relationship between the viral/ bacterial upper respirator [sic] infection and the development of symptoms which would support brachial neuritis as a possible cause. However, the MRI scan of the brachial plexus was reported to be normal rather than showing the usual changes secondary to denervation of the infraspinatus and supraspinatus muscular and her C-reactive protein test was negative.
The most striking feature in her presentation is not the neurological symptoms that would be expected in brachial neuritis but rather pain involving the left levator scapula, upper trapezius and swelling in the supraclavicular area which is more likely to be due to a chronic cervical strain that has occurred while performing computer based activities for long periods under high levels of stress.
Dr Cordato, Neurologist
Dr Cordato assessed Ms Ghaddar on 28 March 2018 at the request of her solicitors. He provided a report of the same date[28] and gave evidence at the hearing.
[28] Exhibit A5.
Dr Cordato had considered the report of Professor Youssef of 20 July 2017 before providing his own report. In the opinion of Dr Cordato, a contra-indication to the diagnosis of acute brachial neuritis “is the lack of any associated weakness at any stage, the persistence of the pain with work exacerbation even to [28 March 2018], more than 12 months post-event, and the lack of any signs of atrophy or any other wasting [that] is often associated with prior brachial neuritis.”[29]
[29] Exhibit A5 at 2.
Further, in his opinion, brachial neuritis “normally causes a short-lived period of pain and discomfort rather than a longstanding pain that is aggravated by physical activity as in her case.”[30]
[30] Exhibit A5 at 4.
Dr Cordato diagnosed Ms Ghaddar as having suffered a cervical muscular injury interrelated to an occupational overuse syndrome resulting from her employment by the Department. The contribution had not ceased and the condition had not resolved.[31]
[31] Exhibit A5 at 4.
Ms Wordsworth, Physiotherapist
Ms Wordsworth first treated Ms Ghaddar on 13 October 2016. She provided a report dated 23 January 2017.[32]
[32] Exhibit R1 at 110.
Ms Wordsworth reported, in part:
On initial presentation Mrs Ghaddar was complaining of pain and stiffness in the L shoulder and was very anxious about a lump which she had noticed on her L shoulder. The “lump” was very painful to touch and visible from the front. Mrs Ghaddar reported that the pain had also started to radiate further down her L arm.
…
I believe that this type of neck/ shoulder pain and stiffness is likely to be caused by prolonged sitting posture at work especially where the work place design is set up such that Mrs Ghaddar is forced to be turned slightly to the L side for much of the working day. This will result in excess stress being placed on the L side.
I do not believe this to be a pre-existing condition, and nor is it likely to be a result of factors other than her employment with the Department of Immigration and Border Protection.
…
Mrs Ghaddar is definitely improving and is reporting reduced pain, more flexibility and that the lump is now much smaller although it is still tender to touch.
CONSIDERATION
Having listened to and observed Ms Ghaddar give evidence, I am satisfied that she was an honest witness who gave her evidence to the best of her recollection. The determination of this matter primarily turns on an assessment of the differing opinions of the medical professionals.
Issue 1: Did Ms Ghaddar suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
It is not in dispute that on or about 29 September 2016 Ms Ghaddar observed a swelling between her left shoulder and neck and suffered pain in this area. I am satisfied that this condition was a physical defect within the meaning of “ailment” in subsection 4(1) of the Act.
Issue 2: Was the ailment “contributed to, to a significant degree” by Ms Ghaddar’s employment by the Department?
Having considered all of the evidence, I prefer the opinion expressed by Professor Youssef to those of the practitioners relied upon by Ms Ghaddar. On the basis of his evidence I am satisfied, on the balance of probabilities, that the ailment suffered by Ms Ghaddar in late September 2016 was acute brachial neuritis.
Professor Youssef was clear in giving his reasons for making the diagnosis he did, including his reasons for rejecting the diagnosis of an injury occasioned by over-use. He characterised the condition as resulting from a preceding infection, which was unrelated to Ms Ghaddar’s employment.
The progress notes from Granville Bridge Medical Centre where Ms Ghaddar consulted her general practitioners, Drs Loutfy and Gabriel, record her as presenting with an infection, and accompanying sore throat, on five occasions across several weeks prior to 29 September 2016:
·12 August 2016 (sore throat/pharyngitis);
·13 September 2016 (sore throat/tonsillitis);
·22 September 2016 (sore throat/allergic rhinitis);
·26 September 2016 (sore glands in neck/resolving viral illness);
·28 September 2016 (very sore neck and throat /left tonsil very red and inflamed).[33]
This medical history is consistent with the diagnosis made by Professor Youssef.
[33] Exhibit R1 at 73-74.
I also take into account that during the three months prior to 29 September 2016 Ms Ghaddar was on leave for significant periods, including from 12 July 2016 to 15 August 2016, and attended work on 18 out of 37 working days during the three month period.[34] I accept the opinion of Professor Youssef that “it would seem very unlikely you would develop an over-use syndrome from working [the hours worked by Ms Ghaddar]”.[35]
[34] Exhibit R3.
[35] Transcript, 19 October 2018.
Professor Youssef also relied upon the MRI, which showed no abnormality, as supporting the diagnosis he made as it confirmed there was no other cause of the problems suffered by Ms Ghaddar. Further, if Ms Ghaddar was suffering myofascial pain as diagnosed by Drs Assem, Cordato and Dalton, it would not be expected that Ms Ghaddar would have suffered the neurological symptoms she reported to Dr Dalton.[36] The neurological symptoms described are consistent with Professor Youssef’s diagnosis.
[36] Exhibit R1 at 99. Dr Dalton reported that Ms Ghaddar described “a burning pain which extends from the top of the shoulder all the day [sic] down the back of the triceps and occasionally down to the hand with very occasional tingling.”
In reaching his diagnosis, Dr Cordato relied in part upon Ms Ghaddar displaying no weakness in the left arm. As Professor Youssef pointed out, Dr Dalton took a history from Ms Ghaddar of a feeling of heaviness in her left arm which felt better if supported. Dr Dalton reported that she had “normal strength other than in her scapular stabilisers”.[37] Further, Ms Ghaddar told Professor Youssef that she could not shower her children as a result of pain and weakness in her left arm.[38] This history was also taken by Dr Low when he assessed Ms Ghaddar in January 2017.[39]
[37] Exhibit R1 at 99 (emphasis added).
[38] Transcript, 19 October 2018.
[39] Exhibit R1 at 29.
When he gave evidence Dr Cordato agreed that the burning sensation and pins and needles described by Ms Ghaddar are usually neuropathic in origin and are consistent with the condition of brachial neuritis.
I have considered that at the time Dr Assem made his diagnosis he understood that Ms Ghaddar was working full-time rather than 21 hours per week over three days. Dr Assem gave evidence that on the basis of the reduced hours, and the fact that Ms Ghaddar had worked only 18 days in the three months prior to 29 September 2016, the diagnosis he initially made was less likely.
Dr Assem referred to Ms Ghaddar’s negative C-reactive protein test[40] as indicative of her condition in late September 2016 not being a result of viral disease.[41] In the opinion of Professor Youssef C-reactive protein may be elevated during infection but normalises once the infection is controlled. As Ms Ghaddar was being treated with antibiotics this could account for the normal result.[42]
[40] Exhibit R1 at 74-75. See also Dr Assem’s report of 1 September 2017 (Exhibit A4).
[41] Transcript, 18 October 2018.
[42] Transcript, 19 October 2018.
On the basis of the evidence referred to I am satisfied, on the balance of probabilities, that Ms Ghaddar suffered acute brachial neuritis and not a form of occupational over-use syndrome. I am satisfied further that her employment by the Department did not make a significant contribution to her condition. Rather, on the balance of probabilities, I am satisfied that the condition was caused by the infection suffered by Ms Ghaddar prior to 29 September 2016.
Issue 3: Did the ailment result in “incapacity for work, or impairment”?
In view of the conclusion reached in the preceding paragraph this issue does not arise.
Issue 4: Did Ms Ghaddar suffer “an injury (other than a disease)”?
I now turn to consider whether Ms Ghaddar suffered an injury in the “primary sense” referred to by the High Court in May.
In determining this question, two sub-issues arise:
4.1 Did Ms Ghaddar suffer a physical or mental “injury” in the primary sense of that word?
4.2 If so, did the injury arise out of, or in the course of, Ms Ghaddar’s employment?
Issue 4.1: Did Ms Ghaddar suffer a physical or mental “injury” in the primary sense of that word?
In May the High Court provided the following guidance:
Generally, [this question] will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgements should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act.[43]
(Footnotes omitted.)
[43] (2016) 257 CLR 468 at 482 [52].
In relation to the question of the materiality of “suddenness” in determining whether an injury other than a disease has been suffered, the High Court said:
… “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant … “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
That an “injury” in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
“[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.”[44]
(Footnotes omitted; emphasis in original.)
[44] (2016) 257 CLR 468 at 481 [47]-[48].
As I have set out earlier in these reasons, on the basis of the evidence of Professor Youssef I am satisfied that the condition suffered by Ms Ghaddar was an inflammation of the brachial plexus (a network of nerves) caused by a preceding infection.[45] The records of Ms Ghaddar’s general practitioners show that from 12 August 2016 to 28 September 2016 she presented on five occasions complaining of a sore throat or related condition.
[45] Exhibit R2 at 15.
Ms Ghaddar was specific in her description of the onset of her condition as gradual and not something that happened spontaneously. She felt more pain on Tuesday 27 October 2016 and did not attend work the following day. She first felt the lump in her shoulder the next day (Thursday 29 October 2016) which caused her to attend at Auburn Public Hospital.
I accept the evidence of Professor Youssef that signs of brachial neuritis include muscle wasting of the affected shoulder girdle and reduced sensation in the suprascapular region.[46] These signs are indicative of a condition which developed over an extended period of time rather than over a relatively short period.
[46] Exhibit R2 at 14.
Mindful of the High Court’s note of caution in May that ““suddenness” is not necessary for there to be an “injury” in the primary sense”,[47] and taking the above matters into account, I am satisfied that the condition of brachial neuritis suffered by Ms Ghaddar was not a physical or mental “injury” in the primary sense of that word as it is used in subsection 5A of the Act.
[47] (2016) 257 CLR 468 at 481 [47].
Issue 4.2: Did the injury arise out of, or in the course of, Ms Ghaddar’s employment?
As such, this issue does not arise for determination.
CONCLUSION
In summary I have concluded that Ms Ghaddar did not suffer a “disease” as the ailment she suffered was not significantly contributed to by her employment by the Commonwealth. Further, Ms Ghaddar did not suffer an “injury” in the primary sense of that word as it is used in section 5A of the Act.
The reviewable decision, being the decision made by Comcare on 17 March 2017 denying liability to compensate Ms Ghaddar in respect of her claim for “pain/swelling in supraclavicular region”, will be affirmed.

I certify that the preceding 75 (seventy five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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Associate
Dated: 3 June 2019

Dates of hearing: 18 and 19 October 2018

Counsel for the Applicant: Mr L Grey

Solicitors for the Applicant: Turner Freeman Lawyers

Counsel for the Respondent: Mr B Kelly

Solicitors for the Respondent: Lehmann Snell Lawyers

[2019] AATA 1093

3 June 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Expert Evidence

Judicial Review

Procedural Fairness

Statutory Construction

Dates of hearing:	18 and 19 October 2018
Counsel for the Applicant:	Mr L Grey
Solicitors for the Applicant:	Turner Freeman Lawyers
Counsel for the Respondent:	Mr B Kelly
Solicitors for the Respondent:	Lehmann Snell Lawyers