Girardi and Comcare (Compensation)

[2019] AATA 502

Girardi and Comcare (Compensation) [2019] AATA 502 (21 March 2019)

Division:GENERAL DIVISION

File Numbers:         2017/1041, 2017/2349, 2018/3090

Re:Gabriella Girardi

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:21 March 2019

Place:Melbourne

The Tribunal affirms the three reviewable decisions dated 5 January 2017, 3 March 2017 and 30 May 2018.

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

Senior Member D. J. Morris

Catchwords

COMPENSATION – Accepted condition – whether liability to pay compensation continued earlier conflicting diagnoses – childhood injury – second condition – whether compensable – permanent impairment – whether payment for non-economic loss payable – reviewable decisions affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 37

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16, 19, 24, 27, 28

Cases

Re Amorebieta and Comcare Australia (1994) 35 ALD 603

Kennedy Cleaning v Petkoska [2000] HCA 45

Secondary Materials

Annotated Safety, Rehabilitation and Compensation Act 1988; 11^th Ed. Peter Sutherland, John Oman Ballard, with Allan Anforth; Federation Press (2018)

Guide to the Assessment of the Degree of Permanent Impairment, Edition 2.1 (2011)

REASONS FOR DECISION

Senior Member D. J. Morris

21 March 2019

BACKGROUND

1. Ms Gabriella Girardi is 59 years old.  She began working for the Australian Taxation Office (ATO) in January 2008 as a Debt Collections Officer. In June 2012 Ms Girardi submitted a claim for workers’ compensation in respect of ‘lateral epicondylitis’, affecting her right elbow, arm, wrist and shoulder, first noticed around 23 April 2012.  She attributed the condition to excessive computer mouse use in the context of a change of work.

2. By determination dated 6 August 2012, the Respondent accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for ‘lateral epicondylitis (right)’, deemed to have been sustained on 7 June 2012.

3. In October 2012 Ms Girardi was examined by Dr Kevin Sleigh, an occupational physician, at the request of the ATO. Dr Sleigh recorded a history that in around June or July 2012 Ms Girardi noticed a lump developing on the volar aspect of her right wrist and that she had been referred to Mr David McCombe, a hand surgeon. Dr Sleigh diagnosed right lateral epicondylitis and a ganglion cyst of the right wrist.

4. Mr McCombe reported on 31 January 2013 that in his opinion the Applicant’s wrist and thumb pain were aggravated by her work-related duties.  He considered that her ganglion symptoms related to the repetitive use of her right hand at work. At the ATO’s request, Ms Girardi was examined in February 2013 by Dr Christiaan Barnard, an occupational physician. In his report, Dr Barnard recorded a history of symptoms relating to Ms Girardi’s right wrist but could not detect any diagnosable condition at that stage. Dr Barnard agreed that Ms Girardi required surgery for the ganglion in her right wrist.

5. On 21 February 2013 the Respondent accepted liability under section 16 of the Act in respect of the proposed surgery, described as ‘excision right risk ganglion neurolysis median nerve.’

6. On 9 April 2013 Ms Girardi underwent surgery performed by Mr McCombe. He performed a carpal tunnel release but discovered that the lump was a divided neuroma, partly within the median nerve and partly in the palmar cutaneous nerve, rather than a ganglion. He elected to leave the neuroma intact rather than attempting an excision; he considered it was not wise to attempt to remove a neuroma so close to a nerve.

7. Ms Girardi returned to work in June 2013 on a part-time basis. By November of that year, she was working seven hours a day for three days a week.  After gradually building up her hours, from June 2014 Ms Girardi returned to her pre-injury, full-time hours of work. Ms Girardi stopped working in August 2016, but is still employed by the ATO. She has had no other gainful employment.

8. On 10 November 2016 Ms Girardi made a claim for compensation in relation to her left wrist, for an injury noticed in early August 2016, which she attributed to ‘use of roller mouse and left hand mouse.’

9. On 11 November 2016 the Respondent determined that Ms Girardi had no present entitlement for compensation under section 16 of the Act for medical expenses, and under section 19 of the Act, for incapacity payments. Ms Girardi sought a reconsideration of this determination. On 3 January 2017 the Respondent denied liability under section 14 of the Act in respect of ‘unspecified injury to elbow, forearm or wrist (left).’ Two days later, on 5 January 2017, CGU acting on behalf of the Respondent made a reviewable decision which affirmed the determination dated 11 November 2016.

10. Ms Girardi sought reconsideration of the 3 January 2017 determination. On 3 March 2017 the ATO made a reviewable decision affirming it.

11. On 20 March 2018 Ms Girardi, after various medical assessments, made a claim for permanent impairment. On 27 April 2018, the ARO issued a determination which denied liability to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Act in respect of the condition ‘lateral epicondylitis (right).’

12. Ms Girardi sought reconsideration of the 27 April 2018 determination. On 30 May 2018 the ATO made a reviewable decision affirming it.

13. The hearing before the Tribunal therefore relates to three decisions: 

    First Decision

14. The first matter before this Tribunal is application 2017/1041—whether at 11 November 2016 Ms Girardi continued to suffer from the accepted injury of right wrist lateral epicondylitis; whether she suffered, or continues to suffer an aggravation of her pre-existing neuroma of the right wrist that was contributed, to a significant degree, by her employment with the ATO. If so, whether she is entitled to compensation from 11 November 2016 for medical expenses under section 16 of the Act, or incapacity under section 19 of the Act.

    Second Decision

15. The second matter before this Tribunal is application 2017/2349—whether Ms Girardi suffered, or continues to suffer, a compensable injury of the left wrist; whether any left wrist condition was contributed to a significant degree by her employment with the ATO. If so, whether she is entitled to compensation for medical expenses under section 16 of the Act, or incapacity under section 19 of the Act. .

    Third Decision

16. The third matter before this Tribunal is application 2018/3090—whether the Respondent is liable to pay compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Act in respect of the condition ‘lateral epicondylitis (right).’

    HEARING

17. The hearing was held from 1 to 3 October 2018. The Applicant was represented by Mr Ray Ternes of Counsel. The Respondent was represented by Mr John Wallace of Counsel.

18. The Tribunal received documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 in respect of application 2017/1041 (AT documents); application 2017/2349 (BT documents); and application 2018/3090 (CT documents). A list of other documents tendered in evidence is in the Appendix at the end of these reasons. Ms Girardi gave evidence and was cross-examined. Several medical witnesses also gave evidence: Mr David McCombe, hand surgeon; Associate Professor Bruce Love, orthopaedic surgeon; Mr Damian Ireland, hand surgeon; and Dr Alex Stockman, rheumatologist.

    APPLICANT’S ORAL EVIDENCE

19. Ms Girardi was referred to her two submitted statements (Exhibits A1 and A2) and clarified that she is unable to use her right arm in any repetitive activity, which causes difficulty with various household chores and activities such as washing her hair. She said she tends to use her left arm because her right wrist can swell up.

20. In her statement, she said that in April 2012 she was assigned to work in a different area of the ATO which had a greater workload. She said she is right-handed and began to experience pain in her right forearm as a result of increased keyboard and, in particular, mouse use. She said the work involved repetitively clicking and ‘incessantly clicking and manoeuvring the mouse’. She stated that the pain in her right forearm was intense and would cause her right hand to swell, making computer mouse work difficult.

21. Ms Girardi told the Tribunal she had an ergonomic check which involved a desk adjustment and provision of a vertical mouse. She said she first noticed a lump on her right wrist in 2012. The 2012 workplace move was into the superannuation debt area where Ms Girardi said she had to complete 16 to18 cases a day, which involved telephoning clients of the ATO who owed debts to the Commonwealth.

22. Ms Girardi agreed that she first saw a doctor in relation to her right wrist problems in June 2012, Dr Ruth Chea. She also saw Ms Kathryn Graham, a hand physiotherapist. She said she started wearing a splint and was referred to Mr McCombe.

23. Ms Girardi said an MRI showed a ganglion, which Mr McCombe said he could remove. As it turned out, a ganglion was not removed in the April 2013 surgery.

24. Ms Girardi said she gradually returned to work. Her duties included data entry regarding garnisheeing, which she said involved a lot more mouse work. She said that by the June-August 2016 period her work was having an impact on her right wrist; by this time she said she was using a roller mouse, which was a thin rotating bar at the bottom of the keyboard. 

25. By August 2016, Ms Girardi said she was in a lot of pain with her left wrist; pain which she said had slowly been developing. She said she ceased work at the ATO on 9 or 10 August 2016 and has not worked at the ATO since.  Ms Girardi confirmed she did attend an ATO training day in September 2016. She said that she had applied to do field work (i.e. visiting clients of the ATO at their places of business) but realised at the end of the training day that she could not do that with her wrist problems.

26. Ms Girardi said she saw Dr Ben Cheesman, occupational physician, on 10 August 2016. She was asked whether she mentioned her left wrist pain to Dr Cheesman. She said she could not recall but thought he was dealing with her right wrist problems and thought her left wrist problem would resolve itself.

27. Ms Girardi confirmed that she saw Associate Professor Bruce Love, orthopaedic surgeon, on two occasions. When asked whether she told him about a childhood accident she had which resulted in a laceration to her right wrist, Ms Girardi said she could not recall; she said she assumed he would have her medical history. 

28. Mr Ternes asked Ms Girardi about the current situation regarding her wrists. She said that her left wrist was ‘a lot better’ but her right wrist was still ‘giving me a lot of problems.’ She said she had done some voluntary work in a food van but had not looked for other employment because she did not know what work she could do, given that she has mostly worked in a computer-based environment. She said that washing her hair numbs the fingers in her right hand, which was not a problem prior to 2012. She said she finds it difficult to chop vegetables and, for this reason, uses a Thermomix. 

29. Ms Girardi was referred by Counsel to a Comcare Compensation Claim for Permanent Impairment and Non-Economic Loss-Form and Checklist (Exhibit A3) where she had filled in the employee’s self-assessment part of the form, dictating the typing to her daughter. The form generally adopts a scale where the higher the mark, the more affecting is the condition.  For example, under ‘suffering’, zero equates to no symptoms, up to 4 which indicates wide-ranging symptoms affecting activity and requiring treatment; and 5 indicates pervasive symptoms restricting activity and that treatment has been of no real benefit.

30. In terms of her self-assessed score and comments of 4 for pain and 4 for suffering (mental distress), she stated this was an accurate reflection. In terms of her mental health, Ms Girardi said she continued to take antidepressants and had suffered from psychiatric illness since before 2012, but had not made a compensation claim in this regard. In terms of her mobility she gave a self-score of 1 (periodic effect on mobility). For her social relationships self-assessment of 3, she said she does find relationships difficult because she is not working and many of her friends are, and she finds she has become more withdrawn. She said she started going to a trivia night once a week at a local hotel and also went bushwalking.  In terms of her recreational and leisure activities self-assessment of 3 (unable to continue with pre-injury activities), she said at the hearing that she might amend that to 2 (frequency of activity reduced, but is able to continue), now, because she is starting to enjoy alternative activities more.  Ms Girardi says she does some light gardening such as pulling out weeds and cutting flowers but before 2012 did more in the garden, particularly pruning.

31. Ms Girardi said that her right wrist swells when the weather is damp or humid. She said she is taking various medications for her right wrist, prescribed by her general practitioner, Dr Vijay Navani, whom she generally sees about once a month.

32. In terms of her employment history, under cross-examination Ms Girardi said she began work aged 16, and so estimated she has been in employment for over 40 years. She told Mr Wallace that prior to working at the ATO she worked for the Salvation Army as an employment consultant, interviewing people looking for work. She said she undertook that work for seven years and used a computer and took down handwritten notes but did not equate that to the work she did at the ATO, which involved more computer- and mouse-work.  She said she also worked for a time for the Victorian Department of Education and for a cardiologist doing secretarial work and audiotyping. Before working for the doctor, Ms Girardi said she worked for one year at a university doing computer work.

33. Mr Wallace referred to an MRI report dated 21 July 2016 which referred to further swelling in the Applicant’s wrist neuroma. Ms Girardi said she had not noticed any swelling until after the MRI, but said she had had ‘a lump’ since 2012. Ms Girardi said that the lump was sore to touch but that she had a soft mousepad at her desk with a raised edge, so her wrist was supported off the desk and not flexed.

34. Ms Girardi said that in April 2012 she began to experience pain in her right forearm, going down her arm. She said she didn’t know that she had a ganglion at that time. She described the pain to the Tribunal as ‘like a strain, running down the top of the arm to the wrist’. Ms Girardi agreed that she had some wrist aches in 2009 but said that they subsided and she didn’t seek medical treatment at that time.

35. Ms Girardi said she did not enjoy her work at the ATO using the ‘dialler’ system (a type of computerised telephone software), which she said was introduced in 2015; and that none of her colleagues liked this system either. She said in 2012 her computer work changed because there was much more mouse use because of more “drop down boxes” in the ATO software – she said it would take six mouse clicks to even put an information note into the system on a person’s file.

36. Ms Girardi agreed with Mr Wallace that at this time she was doing up to twelve cases a day, but she could not remember how much garnishee work she did at that time, because that work was self-paced. She said that garnishee work was not done using the ‘dialler’ system. Ms Girardi told Mr Wallace that it was mouse-work that caused the most symptoms.

37. The Applicant was asked about a training day she undertook in relation to becoming a possible field officer, which involved visiting tax clients at their places of work, and which would require her to use a hand-held iPad. She said she did not hear from the ATO after this day of training.

38. Ms Girardi said following her operation in 2013 she was on a ‘return to work’ programme until June 2014. She said she was not seeing any specialists in relation to her medical treatment other than her general practitioner because she ‘was able to cope by self-pacing’. She told the Tribunal she was seeing a physiotherapist attached to Mr McCombe’s rooms.

39. She told the Tribunal that the ATO told her that they could not offer her work which did not involve using a computer. In terms of the history of her injury, Ms Girardi agreed that she saw Dr Ruth Chia on 7 June 2012 but she did not complain to Dr Chia about wrist pain, as she was having more trouble with her elbow at that time.

40. The Tribunal viewed some photographs of Ms Girardi’s work station. She said the photographs were taken in May 2016 and she stopped working in August that year. She said she used both hands with a roller mouse, but did not believe that this action caused her neuroma to be touching the desk or mouse. Ms Girardi agreed that the cheeks of her hands were on the rest below the roller, but her wrists were not touching.

41. The Tribunal took into evidence an Incident Report of 4 June 2012 (Exhibit R1), a Recovre Ergonomic Assessment report dated 8 May 2012 (R2), an Incident Report dated 27 April 2012 (R3) and a Recovre Ergonomic Assessment report dated 25 June 2012 (R4).

42. Ms Girardi told the Tribunal that she gave up going to the “gym” when she was injured, which was around June 2012; but she couldn’t be precise. She said she resumed attending a gym in either 2013 or 2014; she couldn’t remember exactly and did not return regularly. She said she did spin and step classes there.

43. Ms Girardi confirmed she was a patient of Dr Denver Jansen from early 2015 and that she had told Dr Jansen she enjoyed going to the gym. She could not recall whether she was still going to the gym in 2016 and thinks she may have attended ‘a bit, just casually’.

44. Mr Wallace asked Ms Girardi what had changed between 15 June and August 2016 in terms of the sudden deterioration of her wrist, and she responded that her workload changed and she experienced increased pain when using a roller mouse at her work station. Ms Girardi agreed that she may have been continuing to attend the gym at this time and that she did not report this to Mr McCombe because she did not think it was relevant because she did not use her wrist at the gym – she said she didn’t grip the handlebars of the stationary bicycle when taking spin classes. Ms Girardi said she recalled Dr Jansen administering a grip test and that he concluded that her grip had improved. 

45. Ms Girardi said she did not tell her specialists she had a history of depression, but she did tell Dr Loretta Reiter and Dr Jansen that she was taking Endep. She said neither doctor asked why it was prescribed. Ms Girardi agreed she had a five-year history of depression but didn’t disclose it because it ‘didn’t come to mind’. She rejected Mr Wallace’s contention that she was not being frank with the Tribunal or with the doctors with whom she consulted.

    EXPERT MEDICAL EVIDENCE:

    Mr David McCombe, hand surgeon

46. Mr McCombe said he saw Ms Girardi on referral from Dr Chia initially in October 2012. He also saw her on 29 November 2016 at the request of Dr Navani, and has seen her a number of times over a four year period.

47. Mr McCombe said that the initial diagnosis was a volar wrist ganglion but when surgery was undertaken in April 2013 it was evident that there was a traumatic neuroma of the nerve; which in his opinion related to a childhood accident when Ms Girardi was aged around 8 or 9 and fell through a pane of glass, sustaining a laceration of her wrist. Mr McCombe explained that the neuroma is a consequence of the injury rather than being a true tumour of the nerve itself.

48. The Tribunal had before it Mr McCombe’s report dated 3 August 2018 (Exhibit A4).  He wrote:

    [The Applicant] was initially diagnosed with lateral epicondylitis at the elbow and treated with hand therapy. She had developed volar wrist swelling in June 2012 prior to referral which was painful and aggravated by use of keyboard and mouse and her activities of daily living. She had undergone investigation with ultrasound which suggested she had a volar wrist ganglion.

    She was referred for an MRI scan for assessment of this lesion and a report of this has been included for your records.  The report suggested the lesion was a likely ganglion in close proximity to the median nerve. Options for treatment were discussed and given the position and nature of the lesion identified, Ms Girardi was offered the surgical procedure of excision of volar wrist ganglion in a bid to reduce her symptoms.

    At operation it was clear that the lesion was a neuroma associated with the median nerve rather than a ganglion. Ms Girardi did have a pre-existing volar forearm scar relating to childhood injury but no neurological deficit. On review of imaging at the time of surgery together with the direct operative findings, it was felt that the lesion in the median nerve was a likely traumatic neuroma. A neurolysis of the nerve, preserving the nerve, was performed without resection of the neuroma given distal nerve function was intact and this would have been at risk if neuroma resection was performed.

1. When asked to describe the pathology of a neuroma, Mr McCombe said that if peripheral nerves are damaged, cut or crushed there will be fibrosis, scarring and sprouting of nerve fibres, as a consequence of the injury. It was his opinion that the damage he found when he opened Ms Girardi’s wrist was directly linked to laceration as a child.

2. Mr Ternes told Mr McCombe that Ms Girardi had noticed a visible lump in 2012 and asked how this could be reconciled with his conclusions. Mr McCombe said this was why he initially thought there was a ganglion. He said neuromas can sometimes grow but that is unusual; and his opinion was that it has been present since the childhood injury. He said that he could find no recent penetrating injury to Ms Girardi’s forearm, so he could not explain, in the absence of trauma, why the lump would have grown.

3. Mr McCombe said that because the surgery opened the sleeve of the wrist, the lump may have become more prominent, simply by that surgical action. Mr McCombe said it was his opinion that an asymptomatic condition was rendered symptomatic by the pattern of activity of the hand; and therefore he considered that Ms Girardi’s employment was an aggravating factor.

4. Under cross-examination, Mr McCombe said the ultrasound performed on Ms Girardi implied she had a ganglion, but he thought it was atypical so he ordered an MRI, the results of which also had the appearance of a ganglion. When he performed the surgery, Mr McCombe said he exposed the volar carpal to see whether there was any evidence of a ganglion, but instead found a traumatic neuroma.

5. In terms of the size of the neuroma, Mr Wallace asked Mr McCombe whether it would be possible that what he saw in the wrist could have developed in the last 6 or 7 months, but Mr McCombe’s only thesis was that there had been a change in the repetitive use of the hand, which made it more obvious. Mr McCombe said there was a combination of fibrous tissue and disorganised nerve, and that the 2 millimetre increase in size over the last four years may have been caused by the surgery in 2013. He said it was a relatively stable lesion.

6. In his 3 August 2018 report, Mr McCombe wrote:

   Ms Girardi had not had any symptoms associated with this original injury (and subsequent neuroma formation) up until 2012. When, associated with a [sic] increase in activity she had increase in symptoms in the right upper limb with some symptoms relating to common extensor tendinopathy (lateral epicondylitis) and some symptoms appeared related directly to the volar wrist swelling. The relationship of the development of symptomatic symptoms in the pre-existing condition presumably relates to increased use of the right hand with repetitive flexion and extension of the fingers producing traction symptoms on the neuroma.  After surgery, whilst Ms Girardi had residual symptoms, these were stable up until the time of change in work activity increasing use of the right upper limb and at this time her symptoms were further exacerbated suggesting a causal link between keyboard and mouse use and symptoms.

7. Mr McCombe told the Tribunal he did not have data on Ms Girardi’s work pattern and based his conclusions on her advice to him that she first noticed wrist pain in 2012. He said that he deliberately used the word ‘presumably’ in his report of 8 August 2018, because he was making an assumption in the absence of ‘rigid data’.

8. In answer to a direct question from the Tribunal, Mr McCombe agreed that increased keyboard use would have more effect on the historical injury in the wrist than would mouse use only. Mr McCombe said he considered Ms Girardi’s employment had contributed significantly to her injury.

   Associate Professor Bruce Love

9. Associate Professor Love gave evidence in relation to two examinations he undertook of Ms Girardi on 17 January 2018, which resulted in medical reports dated 17 January, 22 March, 6 June and 25 July 2018. He said that his main area of expertise was in knee injuries and that he would defer to Mr McCombe and Mr Ireland in their expertise in relation to the hand.

10. In terms of the contents of his report that related to Ms Girardi’s wrist, Associate Professor Love said he was reliant on Mr McCombe’s surgical notes in regard to the location of the neuroma. He said he found the area one of extreme tenderness, as he recorded in his report.  Associate Professor Love said he used a goniometer to determine the percentage of loss of movement. However, he said, even using such an instrument, one can only make a ‘rough estimate’.

    Mr Damian Ireland, hand surgeon

11. Mr Ireland referred to his medical report dated 8 November 2017, and a supplementary report dated 7 February 2018, both of which were before the Tribunal. Mr Ireland said that Ms Girardi’s wrist injury was initially diagnosed as a ganglion, which would have been compensable; but it was found to be a neuroma.

12. When asked whether the effect of the injury has ceased in the absence of pathological changes because of aggravation, Mr Ireland responded that aggravation is direct pressure on the neuroma. When Mr Ternes said that it does not appear, from Ms Girardi’s evidence, and from the photographs of her work station, that part of the wrist directly with the neuroma was on her desk, Mr Ireland said he still maintained that the aggravation stopped when the Applicant stopped working. Mr Ireland was advised of the different computer mouses issued to Ms Girardi and her use of a gel mouse pad and replied:

    Notwithstanding the nuances of the various bits of apparatus, you’re explaining whether the hands float or it’s in a semi-pronated position, whether it’s gripping, or the gel pad, or whether it’s under the keyboard or not, I still maintain that whatever aggravation occurred at work stopped when she stopped working. And I again reiterate that the aggravation is so subtle and minor that it’s no more serious than her normal activities of daily living.

13. Under cross-examination, Mr Ireland said, when referring to Mr McCombe’s operation report, that there was no evidence of adhesion to the flexor tendons, and those neuromata do not change without outside stimulation.

    Dr Alexander Stockman, rheumatologist

14. Dr Stockman told the Tribunal he examined Ms Girardi in January 2017 at the request of Dr Navani. He diagnosed flexor tenosynovitis of the left wrist and wrote a report to Dr Navani dated 23 January 2017 (BT, p 162). Dr Stockman said that the pain is in the flexor, made worse by movement and tenderness and ‘somewhat supported by the MRI’. He had made this diagnosis because the history, examination and MRI all seemed to point to flexor tenosynovitis.  Dr Stockman arranged for Ms Girardi to be fitted with a resting splint to be worn at night and prescribed Mobic 15 mg with cover of Nexium.

15. Dr Stockman said he was not familiar with all the duties that Ms Girardi undertook at work at the ATO, but in his mind using a computer mouse and using her left hand in a repetitive fashion would be consistent with injury to the wrist. Under cross-examination, Mr Wallace asked Dr Stockman if he was aware that the Applicant was using a roller mouse, and when shown a photograph of the roller mouse said he was thinking more about the typing she undertook in her work. He said it was still his opinion that the repetitive movement of the fingers caused the condition he had diagnosed, even if the patient herself said she didn’t think typing was the cause.

16. Dr Stockman said he agreed with Dr Reiter’s view, that a minor tear in the cartilage was not of great moment and was a common occurrence when a person gets older. Dr Stockman said he did not agree with Dr Reiter’s diagnosis that Ms Girardi had extensor tenosynovitis and felt the best interpretation of her condition was flexor tenosynovitis.

17. Dr Stockman told the Tribunal he did not use a flexing of fingers test when he examined the Applicant, but did a thorough examination including palpitation, range of movement, and feeling for any swelling. When asked by Mr Wallace whether a roller mouse would cause this condition, Dr Stockman said it was his view that it was the ‘whole task’ that Ms Girardi was undertaking at her work station.

    Closing submissions from the Applicant

18. Mr Ternes said that this was not a hard case, but it was difficult medically. In terms of application 2017/1041, he said that the lump on Ms Girardi’s wrist was initially diagnosed as a ganglion, and later found to be a neuroma. Mr Ternes said the law provides that if a person has a pre-existing asymptomatic condition which has been rendered symptomatic by work to a significant degree, then the symptoms of that condition is compensable.

19. Mr Ternes drew the Tribunal’s attention to authorities on this question: Re Amorebieta and Comcare Australia (1994) 35 ALD 603, wherein the Tribunal found:

    “while it was not possible for the tribunal to determine if A’s disc bulging was work caused, the tribunal was satisfied that his position was largely asymptomatic prior to the January 1992 incident at work. The accident has therefore rendered an essentially asymptomatic condition symptomatic, thereby changing the underlying pathology of his condition.”

20. Mr Ternes said that if the Tribunal accepts the asymptomatic neuroma of Ms Girardi’s right wrist became symptomatic, then that condition is compensable if work contributed to a significant degree, even if the Applicant ceased to do work which aggravated the condition.

21. Mr Ternes submitted that there was a change in the anatomical structure of Ms Girardi’s wrist in late June 2012 which was recorded in the letter of Katherine Graham 14 June 2012.

22. Mr Ternes said that Ms Girardi used a keyboard and a mouse, and prior to July 2012 used a standard computer mouse and sometimes an upright one, and thereafter a roller mouse. He said the Tribunal can accept that there was a resting of the wrist on the keypad.

23. Mr Ternes said that the evidence of Mr McCombe showed an impressive knowledge of the Applicant’s conditions, and that his assessment was replied upon by Mr Ireland and Associate Professor Love. Mr Ternes submitted that Mr McCombe’s assessment supported a pattern of work-related pain. Where Mr McCombe’s and Mr Ireland’s conclusions differ, Mr Ternes submitted the Tribunal should prefer Mr McCombe’s opinion, because he was the one who conducted the surgery.

24. Mr Ternes said that liability should be found under sections 16 and 19 of the Act, and the matter should be remitted to Comcare.

25. In terms of application 2013/2349, Mr Ternes said this was in essence a dispute between Dr Stockman and Dr Reiter, and that the Tribunal should place greater weight on the opinion of the former, because it had not had the opportunity to test Dr Reiter’s conclusions. He submitted that liability should be found under section 14 of the Act and the matter remitted to Comcare.

26. In terms of application 2018/3090, Mr Ternes submitted that if the Tribunal concludes there is a compensable condition then it flows on, and if the Tribunal does not make this finding, there is no entitlement for permanent impairment.

27. Mr Ternes said that the Tribunal should be satisfied with Associate Professor Love’s assessment of 18 per cent whole person impairment, and that Ms Girardi’s evidence in respect of non-economic loss should be accepted. Mr Ternes submitted that the scores contended in Ms Girardi’s written statement as amended  during the hearing in relation to recreational activities should be accepted.

    Closing submissions from the Respondent

28. In relation to application 2018/3090, Mr Wallace said there was no valid claim for non-economic loss before the Tribunal that satisfies section 28 of the Act, because the scores had not been completed by Associate Professor Love.

29. In relation to the question of aggravation, Mr Wallace said it was accepted by Mr McCombe and Mr Ireland that the existing neuroma in Ms Girardi’s wrist was aggravated, according to Mr McCombe, by typing, a traction problem and the median nerve. Mr Wallace said that Mr Ireland had said there was no evidence of adhesions and no evidence of a median nerve lesion caused by an aggravation. Therefore, the reconsideration decision made by Comcare should be affirmed.

30. Mr Wallace said that there is no evidence that the underlying pathology of the condition was changed by Ms Girardi’s use of the computer mouse and keyboard. In this case, he submitted, the neuroma was there and whether it was observable or not is irrelevant.

    CONSIDERATION

    Claimed right wrist condition

31. There was no dispute between the parties that Ms Girardi has a right wrist condition. It is unfortunate that, as she sought to find out the nature of the condition, her medical advisers concluded that it was a ganglion, a finding supported by an MRI scan. The Tribunal notes that the MRI scan report of 23 November 2012, which was attached to Mr McCombe’s report, stated “ Ganglion but extending superficial to median nerve” and then, as a comment, “Likely ganglion…”.

32. That this tentative diagnosis was erroneous was only discovered when Mr McCombe actually opened the wrist up. What he discovered was a lesion which he decided was likely to be a traumatic neuroma. In his 8 August 2018 report he said:

    “The original injury to the median nerve noted at the time of surgery presumably occurred at the time of her childhood laceration given that spontaneous neuroma formation within the extremity is unusual in the absence of a [sic] inciting traumatic event.”

33. Therefore, Ms Girardi’s right wrist condition is an accepted injury. The key question, in deciding whether the First Decision was the correct decision is, therefore, whether this condition remains a compensable condition. The Respondent urged the Tribunal to place greater weight on the medical opinion of Dr Ben Cheesman.  Dr Cheesman’s opinion was that the:

    “Previous right later epicondylitis (shown on USS in 2012) now resolved (supported by the subsequent MRI imaging). The current clinical presentation no longer supports this diagnosis. … In her right wrist, there are changes consistent with persisting neuroma.”

34. Dr Cheesman’s conclusion was that Ms Girardi continues to have ongoing problems with her right wrist, but that these are attributable to the neuromata which, as Mr McCombe found when he operated, were pre-existing; and, in Mr McCombe’s view, likely the result of lacerating her wrist when she fell through a pane of glass as a child.

35. Mr Damien Ireland stated in his 7 February 2018 report, in response to specific questions:

    Noting your view, it is unlikely the Applicant’s conditions would have become symptomatic without activities requiring pressure on the volar surface of the distal forearm, but any work related aggravation has fully resolved, please confirm whether you consider she would suffer any current conditions, symptoms and restrictions regardless of any ‘transient’ work related aggravation in the past

    In my opinion the right lateral epicondylitis condition which was aggravated by work has now essentially resolved.  The remaining problem is the neuroma affecting the median nerve due to an injury unrelated to work incurred in childhood.  Previously I have stated that, in my opinion, the symptoms of the neuroma were aggravated by the nature of the work causing direct pressure on the fully pronated forearm.  Since this work activity has ceased, it is my opinion that the current symptoms are related to and caused by the pre-existing condition. In my opinion it is probable that the worker would have developed similar symptoms associated with the normal activities of daily living when required to undertake work or undertake such activities as the normal activities of daily living that require direct contact with the pronated forearm as in wiping down a bench or at rest sitting at a desk reading a computer screen.

    Given your opinion any aggravation of the Applicant’s right elbow epicondylitis and neuromas has resolved, do you believe any incapacity for work is not or no longer the result of any work related aggravation of her conditions significantly contributed to by employment?

    As stated previously, it is my opinion that the contribution to the current condition by the work related activity has ceased and furthermore that the remaining symptoms are due to the pre-existing injury in childhood that was not caused by work.

    The opinions outlined above are largely based on the operative findings of Mr David McCombe which clearly related the pathology to traumatic neuroma formation caused by a childhood injury rather than to any work induced pathological process such as the incorrectly radiologically diagnosed ganglion cyst.

36. The Tribunal finds that the weight of medical evidence supports the conclusion that Ms Girardi’s lateral epicondylitis (right) has essentially resolved. That is not to say that the Tribunal does not accept her evidence that she still experiences trouble with her wrist, but the opinion of Mr Ireland and Dr Cheesman is that the residual effects relate to the traumatic neuroma Mr McCombe found in surgery. 

37. From Ms Girardi’s own evidence about her work activities, and from the Tribunal’s consideration of the photographs of her work station, the Tribunal is not satisfied that there is evidence of any increase in use of the computer mouse, such as would precipitate an aggravation of a wrist condition that the medical evidence concludes has resolved.

38. To the extent that Mr McCombe’s 8 August 2018 report contained his opinion on Ms Girardi’s work pattern in relation to her hand and forearm movement, Mr McCombe essentially retracted that in his oral evidence, when he conceded that he was basing his ‘presumed’ conclusions on what the Applicant had told him and without, in his words, ‘rigid data’ on what her work at the ATO actually entailed. The Tribunal notes that Mr McCombe explicitly amended his report in the witness box to make clear that he intended to state in his written report, when expressing an opinion on Ms Girardi’s current capacity for work (and noting that he has not reviewed her since 2016) that he was unable to say whether she has regained work capacity.

39. In terms of the First Decision, the Tribunal concludes that the accepted condition resolved before 11 November 2016. This finding is supported by Dr Cheesman’s report and the supplementary report of Mr Ireland. Ms Girardi cannot seek compensable relief in regard to the discomfort she reports in her right wrist, stemming from the traumatic neuroma, because she has not suffered an injury simpliciter, that is what Gleeson CJ and Kirby J (concurring) stated in Kennedy Cleaning Pty Ltdv Petkoska [2000] HCA 45, at [39] is:

    …something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.

40. Accepting Ms Girardi’s own evidence that she felt there had been some swelling, over time, and a lump had developed that she hadn’t noticed before, there is no evidence before the Tribunal of a change in pathology. In fact, the consistent medical evidence points away from there having been any change.

41. The Tribunal must also consider whether, in a wrist condition that may have become symptomatic, there has been an aggravation that was contributed in a significant degree (i.e. substantially more than material), by Ms Girardi’s employment with the ATO.

42. There is insufficient evidence before the Tribunal that the divided neuromata in Ms Girardi’s wrist have been aggravated. Mr McCombe’s opinion was that spontaneous formation of neuromata is unusual, unless there is some traumatic event which occurred, and Ms Girardi did not make such a contention. Mr Ireland’s opinion was that the symptoms Ms Girardi reported would have occurred with normal activities of daily living outside of, as well as in, work. This conclusion is supported by Ms Girardi telling the Tribunal she continued to have ongoing problems with her wrist after ceasing full-time work at the ATO, even if there has been some more recent improvement.

43. In regard to the First Decision, the Tribunal therefore concludes that the Applicant had, and has, no incapacity for work as a result of a compensable injury, and consequently is not entitled to incapacity payments under section 19 of the Act. The Tribunal further concludes that from 11 November 2016 Ms Girardi did not require any medical treatment in relation to any compensable injury, and does not presently. Accordingly, the Applicant is not entitled to compensation for medical expenses under section 16 of the Act.

    Claimed left wrist condition

1. In regard to the Second Decision, the Tribunal had before it the report and oral evidence of Dr Stockman. The Tribunal also had a report from Dr Loretta Reiter, rheumatologist.

2. Mr Ternes submitted that Ms Girardi had experienced left arm and wrist symptoms since about 2013, but they became severe in August 2016.  Ms Girardi said in her statement dated 26 September 2018 (Exhibit A2):

   I don’t remember precisely when I first had pain in my left arm; I think it was around January 2013 when I had an ultrasound of my left wrist.  I had left arm pain on and off after about then; it was not continuous.

   In mid-2016, about August, my left arm pain became continuous, and this is when I felt it was at its worst.

3. The Tribunal considered the clinical notes of the Applicant’s treating general practitioner, Dr Vijay Navani; but there is no reference in his medical report to Comcare dated 30 August 2016 (T14, p 65) to any left wrist complaint. Ms Girardi ceased work in August 2016.  Dr Navani did subsequently order an MRI of the left wrist which was conducted on 31 October 2016.  The MRI report records:

   The median and ulnar nerves are within normal signal and morphological appearances.  No compressive lesion. Normal carpal tunnel. Minor amount of deep flexor tendon sheath fluid. Tendons are normal.

   A small amount of extensor tendon sheath fluid, particularly Compartments 2-4.  Normal ECU.

   Radial attachment tear of the triangular fibrocartilage and tearing also involving the foveal and styloid attachment fibres. Small distal radioulnar joint effusion.  Normal proximal lunate, distal ulnar articular cartilage.

   …

   No median or ulnar abnormality.

   Minor deep flexor, extensor Compartments 2-4 tenosynovitis.

4. Ms Girardi saw Dr Cheesman on 10 August 2016 (T11, p 51) in relation to her right wrist problems. He took a comprehensive medical and work history. He did not record Ms Girardi making any comments to him about her left wrist. Ms Girardi was also referred by Comcare to see Dr Loretta Reiter, rheumatologist, on 1 December 2016. Dr Reiter records that Dr Navani referred Ms Girardi for an ultrasound of her left wrist in September 2016 but that was normal, so he referred her to for an MRI, the results of which are above.

5. Dr Reiter’s view was that Ms Girardi’s symptoms of pain in her left wrist were not consistent with the findings of the MRI. She said that Ms Girardi’s history is not consistent with tenosynovitis because that condition presents with inflammatory type pain, which was not what Ms Girardi reported. Dr Reiter said that the Applicant did not have pain or tenderness on the dorsal surface of her wrist which would be expected if she had extensor tenosynovitis, but reports pain and tenderness on the flexor surface of the wrist.

6. Dr Reiter’s conclusion was that the computer work that Ms Girardi undertook at the ATO was not the cause of her current symptoms affecting her left wrist. Importantly, in the Tribunal’s view, Dr Reiter stated:

   Her intermittent pain in her wrist may be due to the tears of the triangular fibrocartilage, as this can cause pain with using her left upper limb, which she does describe.  However, tears of the triangular fibrocartilage only occur as a result of trauma such as falling onto one’s outstretched hand or they are degenerative in origin. Therefore, simply clicking mouse, keying, doing any day-to-day office work would never cause tears of the triangular fibrocartilage.

7. The Tribunal is not able to draw any conclusion as to whether the tears in Ms Girardi’s triangular fibrocartilage might be traceable to her childhood accident, but that is a possibility raised in Dr Reiter’s diagnosis. 

8. Mr Ireland, in his report dated 8 November 2017, said that he was of the opinion that there was no physical condition affecting Ms Girardi’s left wrist.  As recorded above, Ms Girardi herself thought her left wrist complaint would resolve by itself and she told the Tribunal it was a lot better.

9. The Tribunal finds that Ms Girardi did not suffer a compensable injury of the left wrist. 

   Permanent impairment claim

10. It follows from the Tribunal’s consideration of the previous applications that Ms Girardi does not suffer any permanent impairment as a result of any compensable injury. Therefore, she is not entitled to compensation under sections 24 and 27 of the Act.

11. The Tribunal notes that Mr Wallace contended that, in regard to application 2018/3090, there was no valid claim for non-economic loss before the Tribunal because the Guide to the Assessment of the Degree of Permanent Impairment had been filled in by Ms Girardi and not completed by Associate Professor Love.

12. Under the Act, assessments for non-economic loss fall under section 27. That section, at subsection (2), includes a formula for the assessment of the amount of compensation payable for non-economic loss. Part of the formula requires an assessment by Comcare under the ‘approved guide’. The approved guide is defined at section 4 of the Act to mean:

    (a)        The document prepared by Comcare under section 28 under the title ‘Guide to the Assessment of the Degree of Permanent Impairment, that has been approved by the Minister and is for the time being in force; and

    (b)        If an instrument varying the document has been approved by the Minister – that document as so varied.

13. The current approved guide is Version 2.1 and applies from 1 December 2011.  Intrinsic in the Guide are requirements on the ‘Assessor’ in assessing impairment of an employee.  It is axiomatic that the employee, him or herself, cannot be the assessor. 

14. As such, the checklist ‘Compensation Claim for Permanent Impairment and Non-Economic Loss – Form and Checklist’, completed by Ms Girardi, but not by a medical practitioner, is useful only as the Applicant’s own assessment, it does not satisfy the requirements in section 28 of the Act in regard to being anything more.

15. Associate Professor Love in his amended report dated 25 July 2018 (Exhibit A6) referred to the current approved guide and stated:

    By referring to table 9.13.2(a) median nerve below the mid forearm with a grading of 2, Ms Girardi can be given a 16% whole person impairment.

    In addition, the loss of movement of the right wrist where flexion is 40º, extension 60º, and there is an absence of loss of radial ulnar deviation a 2% whole person impairment.  This could be combined with the 16% whole person impairment for sensory impairment giving an 18% whole person impairment used with Combined Values Chart.

16. The Tribunal recites this evidence for the purposes of making clear that while the form and checklist are of little evidentiary value as, without a linked medical practitioner’s assessment they are only a self-assessment, Associate Professor Love’s assessment in his amended report cites the correct Guide instead of the AMA Guidelines which he applied in his earlier report. But he did not apply the tables in relation to assessment of non-economic loss in the manner required by Division 2 of the Guide.  Under section 28(4), even had the Tribunal found that the right wrist injury of Ms Girardi remains compensable, the Tribunal cannot have regard to this assessment in relation to Ms Girardi, given this deficiency.

    DECISION

17. The Tribunal affirms the following reviewable decisions:

    -A reconsideration decision of 5 January 2017 affirming an earlier decision of 11 November 2016 that the Respondent had no present liability to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the Applicant’s accepted injury of ‘lateral epicondylitis (right)’.

    -A reconsideration decision of 3 March 2017 affirming an earlier decision of 3 January 2017 denying liability to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an ‘unspecified injury to the left elbow, forearm or wrist’,

    -A reconsideration decision of 30 May 2018 affirming an earlier decision of 27 April 2018 denying liability to pay compensation under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 for permanent impairment and non-economic loss in respect of a right arm injury.

I certify that the preceding  108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

…[sgd]………………………………………………
Associate
Dated: 21 March 2019

Date of hearing:  3 October 2018
Counsel for the Applicant:                  Mr Ray Ternes
Counsel for the Respondent:             Mr John Wallace
Solicitors for the Applicant:                Angela Sdrinis Legal
Solicitors for the Respondent:           Thomson Geer

APPENDIX

List of Exhibits

A1       Statement of the Applicant dated 31 August 2018.

A2       Further Statement of the Applicant, dated 26 September 2018.

A3       Comcare form and checklist completed by the Applicant.

A4       Report of Mr David McCombe, dated 3 August 2018.

A5       Report of Associate Professor Bruce Love, dated 6 June 2018.

A6       Report of Associate Professor Bruce Love, dated 25 July 2018.

A7       Report of Dr Vijay Navani, dated 26 July 2018.

A8       Clinical notes of Dr Chia and ultrasound of right wrist and letter of Kathryn Graham, physiotherapist.

A9       Letter of Kathryn Graham, dated 14 June 2012.

A10     Clinical records from Mr David McCombe’s rooms.

AT       Volume of documents labelled T1 to T317.

BT      Volume 2 for Application 2018/2349 labelled T1 to T46.

CT      Volume 3 for Application 2018/3090 labelled T1 to T10.

R1      Incident report dated 4 June 2012.

R2      Ergonomic Workstation Assessment by Recovre Group, dated 30 April 2012.

R3      Incident report dated 27 April 2012.

R4      Ergonomic Workstation Assessment by Recovre Group, dated 25 June 2012.

R5      Dr David Freilich 2 December 2016 letter & Nerve Conduction Study Report

R6      Clinical Records from Taylors Lake Medical Centre

R7      Respondent Submissions re ’Aggravation’ of non-work caused neuromas

R8      Report of Dr Ben Cheesman dated 29 June 2018