Greater Western Area Health Service v Williams
[2010] NSWWCCPD 95
•1 September 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Greater Western Area Health Service v Williams [2010] NSWWCCPD 95 | |||||
| APPELLANT: | Greater Western Area Health Service | |||||
| RESPONDENT: | Ligaya Williams | |||||
| INSURER: | GIO General Limited NSW, Treasury Managed Fund No 1 | |||||
| FILE NUMBER: | A1-6144/09 | |||||
| ARBITRATOR: | Mr C Messenger | |||||
| DATE OF ARBITRATOR’S DECISION: | 22 February 2010 | |||||
| DATE OF APPEAL DECISION: | 1 September 2010 | |||||
| SUBJECT MATTER OF DECISION: | Carpal tunnel syndrome, weight of evidence; expert opinion; sections 4, 9A and 16 of the Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | DLA Phillips Fox | ||||
| Respondent: | Maurice Blackburn Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 22 February 2010 is confirmed, save for paragraph 2(b), which is revoked, and the following order substituted: The degree of permanent impairment in respect of injury to the right upper extremity is to be referred to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a deemed date of injury of 20 March 2009, being the date of the Notice of Injury. The appellant, the Greater Western Area Health Service, is to pay Ms Williams’s cost of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 19 March 2010, the Greater Western Area Health Service (the Hospital/appellant) sought leave to bring an Appeal Against Decision of Arbitrator in the Workers Compensation Commission (the Commission) against a decision dated 22 February 2010.
The respondent to the appeal is Ms Ligaya Williams (the respondent/worker).
Ms Williams has been employed as a registered nurse at Orange Base Hospital for approximately 20 years. She alleges to have suffered injury in the form of bilateral carpal tunnel syndrome caused by her work, or that the condition was exacerbated, aggravated and/or that it deteriorated as a result of her work from 2001 to date.
Ms Williams submitted a claim form in September 2001. She stated that, as a result of the repetitive work activities, particularly involving her right arm and hand, including adjusting beds, mixing antibiotics for intravenous injections, giving injections and manually handling patients, she sustained injury. The employer’s report of injury form dated 29 October 2001 confirmed that she had reported suffering right carpal tunnel syndrome as a result of repetitive use of her hands carrying out her duties, but noted that she had not lost time from work.
Although she had not been off work, on 24 April 2008, Ms Williams completed a “recurrence report of injury following a return to normal duties”. The document recorded that 15 September 2001 was the date of the original injury. It stated that she had continued working and the recurrence date was 15 January 2008, the original symptoms having continued and slowly worsened.
On 16 March 2009, the worker submitted a claim for compensation under section 66 in respect of an eight per cent whole person impairment as a result of injury to her right arm.
On 3 August 2009, Ms Williams filed an Application to Resolve a Dispute in the Commission, claiming injury to both arms. Ms Williams alleges that the nature and conditions of her employment with the Hospital from 1 January 2001 to date and continuing “materially caused, exacerbated, aggravated and/or deteriorated the injury…”. She claimed payment of medical expenses and lump sum compensation as a result of injury to her right arm under section 66 of the Workers Compensation Act 1987 (the 1987 Act).
The insurer, Treasury Managed Fund (TMF), issued a section 74 notice on 12 August 2008 declining liability on the basis that Ms Williams did not suffer injury, her employment was not a substantial contributing factor to any injury, she was not incapacitated and the medical expenses were not reasonable or necessary pursuant to sections 59 and 60 of the 1987 Act.
On 25 August 2009, the Hospital filed a Reply, relying on the section 74 notice and a medicolegal report from Dr Stapleton, hand, plastic and reconstructive surgeon, dated 2 July 2008. In addition to the reasons for declining liability as set out in the section 74 notice, the Hospital also disputed that the worker had a permanent impairment and the extent of the permanent impairment. It denied that any impairment was work-related.
The Commission listed the matter for conciliation and arbitration in Orange on 20 October 2009. The matter proceeded to hearing. Over objection from counsel for the Hospital, Ms Williams sought, and was granted, leave to give oral evidence. At the conclusion of her evidence, counsel for the Hospital made a successful application for an adjournment in order to meet the new evidence given by Ms Williams. The matter was stood over to a teleconference on 13 November 2009.
The teleconference outcome form dated 13 November 2009 recorded that the parties agreed that the worker would serve a supplementary statement and the respondent would forward that statement to Dr Stapleton and seek a supplementary report, after which the matter would be ready to proceed. The matter was stood over to a further teleconference on 18 December 2009.
The teleconference outcome form dated 18 December 2009 recorded that the worker filed an Application to Admit Late Documents dated 26 November 2009, which attached an undated and unsigned statement from the worker. The employer filed an Application to Admit Late Documents dated 16 December 2009, attaching a report from Dr Stapleton dated 10 December 2009. The documents were admitted into evidence without objection. Further, the parties agreed for the matter to proceed by way of written submissions and a timetable was set for the filing and service of those submissions.
After receipt of the written submissions from both parties, the Commission issued a Certificate of Determination and written Statement of Reasons (Reasons) dated 22 February 2010. It is from this decision that the Hospital now seeks leave to appeal.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 22 February 2010 records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant’s expenses pursuant to Section 60 of the Workers Compensation Act, 1987 on production of Tax Invoices and/or receipts.
2. The Applicant suffered an injury to both arms as a result of the nature and conditions of her employment with the Respondent from 2001 and continuing.
(a)I remit the matter to the Registrar for referral to an AMS.
(b)The degree of permanent impairment in respect of injury to the left and right upper extremities is to be referred by the Registrar to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a deemed date of injury of 20 March, 2009 being the date of the Notice of Injury.
3. The documents to be sent to the AMS are those accepted into these proceedings.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that the worker had proved, on the balance of probability, that her condition arose out of or in the course of her employment (injury);
(b) his reasoning in relation to causation and whether he reversed the onus of proof (causation);
(c) rejecting and/or failing to afford sufficient weight to Dr Stapleton’s expert opinion (Dr Stapleton), and
(d) applying the provisions of section 9A to the facts (section 9A).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 19 March 2010, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The monetary thresholds in section 352(2) are met.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on new or additional evidence on appeal.
EVIDENCE
Ms Williams’s evidence
Ms Williams wrote a letter dated 20 October 2001 addressed “To whom it may concern” which reads:
“I attended my GP on [an] unrelated matter and I mentioned [that] I am having pins and needles on [sic] my right hand. Dr Howe believes my pins and needles sensation to my right hand is due to carpel [sic] tunnel syndrome.
Upon serious reflection with him, we believe the only reasonable explanation of this injury is through my work as a nurse.
There is no doubt in my mind that this injury has been slowly progressing to the point where it is clinically noticed [sic]. I am unable to ascertain any particular incident at work that is causing my present symptoms.”
Ms Williams also relied on an unsigned and undated statement annexed to the Application. The index to the Application identifies the statement as being dated 30 July 2009. Ms Williams stated that she had worked at the hospital for 20 years. She worked mostly in the general surgical ward and her duties involved frequent and repetitive lifting, moving, washing and showering patients. She noticed the onset of numbness and tingling in both hands in about 2001. Shortly thereafter, she attended her general practitioner and was referred to Dr Kwa.
Ms Williams said that she made a claim for compensation which was initially accepted. She continued to perform work and, in January 2008, she experienced bilateral arm symptoms, after which she continued to work with some difficulty and pain. She noted that heavy lifting increased the tingling sensation in her right hand.
At the arbitration hearing, Ms Williams gave evidence that she regularly used her hands in a variety of nursing duties on the medical floor and the male surgical ward. She confirmed that “we” usually gave five antibiotics through IV drips to patients after surgery for about five days. She stated that the antibiotics could be given by pushing slowly on a syringe (T4.10).
She also said she was required to connect drips to patients by using her hands in a screwing fashion. In addition, she stated that, over the years, she administered thousands of intramuscular and subcutaneous injections requiring the use of her thumb (T4.35). During every shift, she would assist three or four patients to shower. She also confirmed that she was required to wind beds up. This necessitated holding a lever with the right hand and lifting the bed with the left (T5.15-25). In the surgical ward, she lifted patients using a slider board and pulling linen to slide the patent onto the bed.
Ms Williams described the setting up of dialysis machines. There were three staff rostered on and nine patients who required dialysis. Assembling and disassembling the machines took about twenty minutes for each machine. When a needle was removed from the renal patients’ fistulae she was often required to press the fistula to stop bleeding. If she was required to do this, after about 15 minutes she felt tingling in her hand and she needed to swap hands (T9.10-15). She also confirmed that she was required to take blood pressure using a manual monitoring machine.
The supplementary statement annexed to the Application to Admit Late Evidence filed by Ms Williams’s solicitors was referred to as being dated 24 November 2009; however, the attached statement was undated and unsigned. In the later statement Ms Williams adopted her earlier statement dated 30 July 2009. In addition, she stated that she was required to assist patients with transfers between beds and operating tables six times a day. This involved “grabbing a slide or placing my arms physically underneath a patient”. She also showered, dressed and generally assisted patients multiple times a day.
Administering intravenous injections required the manipulation and use of her forearms, which caused an aggravation of pain. When, on occasion, she was required to crush tablets using a mortar and pestle or pill crusher, she needed to exert force with her hands.
In her second statement, Ms Williams confirmed that the work which most aggravated her bilateral forearms was assembling dialysis machines. The fine motor manipulation and pronation of her wrists assembling and disassembling various parts caused bilateral pins and needles. She also experienced pain in her left wrist, in particular, when she was required to hold a swab to a patient’s arm for 15 minutes to stop blood flow.
Medical evidence
Dr Howe, general practitioner, issued a WorkCover certificate dated 18 October 2001. He said that the worker suffered carpal tunnel syndrome of her right hand as a result of repetitive overuse of the hand. The clinical features “were not due to a previous injury/disease”.
In a report dated 15 November 2001, Dr Howe noted that EMG studies confirmed right carpal tunnel syndrome. He concluded that repetitive use of the right hand and wrist was the most likely cause of the symptoms. He certified Ms Williams fit to continue working.
A WorkCover certificate from Dr Howe dated 20 February 2002 did not detail any cause of injury or date of injury. However, under the heading “diagnosis”, Dr Howe wrote bilateral carpal tunnel syndrome and bilateral ulnar nerve entrapment.
Dr Kwa, treating hand and orthopaedic surgeon, in a report dated 19 March 2002 addressed to Dr Howe, confirmed that Ms Williams had experienced symptoms of paraesthesia, mainly in her right middle finger, over many years. The symptoms were intermittent and usually occurred on waking in the morning. She did not complain about symptoms waking her at night and nor did she have symptoms during the day. She had no disturbance of function or sensation during work activities. He diagnosed mild carpal tunnel syndrome. He did not consider that Ms Williams required surgery at that time. However, if her symptoms worsened and she had significant night-time or daytime symptoms, she should consider decompression surgery.
Dr Kwa provided a further report dated 15 January 2008. He stated that the worker’s problems in her right hand stemmed back to 2001, with the spontaneous onset of paraesthesia and numbness in her right hand. She reported waking at night with pins and needles. During the day, whilst driving, she would get symptoms and occasionally at work she would have symptoms, mainly when she had to strongly grip objects such as when connecting dripsets. Dr Kwa recorded that generally during the day Ms Williams did not have many problems with the use of her hand. The symptoms were mostly nocturnal.
Ms Williams told Dr Kwa that her symptoms had continued since 2001 and were worse in recent times. Dr Kwa noted that the nerve conduction studies conducted in 2002 by Dr Gordon confirmed the presence of bilateral carpal tunnel syndrome, worse on the right. There were also some electrical abnormalities of the ulnar nerve. He diagnosed chronic carpal tunnel syndrome. He confirmed that the symptoms had been present for many years and that Ms Williams required carpal tunnel decompression.
Noting that Ms Williams intended to pursue the workers compensation claim, he said “in cases like hers I feel that there is some contribution from her work activities but whether this is significant or not I cannot say”.
Dr Howe, in a report dated 14 May 2008 addressed “to whom it may concern”, noted that he had seen Ms Williams on 29 April 2008 and that she complained of pain and numbness in her right hand. She had already seen Dr Kwa, undergone investigations and been diagnosed with carpal tunnel syndrome. He noted she was coping with duties and anticipated that she would make a full recovery after surgery.
Ms Williams relied on a medicolegal report from Dr Evans, general physician, dated 13 January 2009. Dr Evans recorded a history that Ms Williams had worked as a registered nurse at the Orange Base Hospital for about 20 years. For most of that time, she worked in general surgical wards. The work involved “much lifting of patients, adjusting intravenous drips, giving injections, washing patients, moving patients, showering patients etc”.
Ms Williams first experienced numbness and tingling in her hands, predominantly her right hand, which would wake her at night. Dr Kwa provided her with night splints in 2002, which provided some benefit, but the symptoms became more troublesome. When she attended again on Dr Kwa in 2002, he confirmed the diagnosis of bilateral carpal tunnel syndrome.
Dr Evans noted that Ms Williams was currently working in the dialysis unit. She worked full time on normal duties. She was coping with the work, including the insertion of cannulas. She had only mild difficulty with work as a result of hand symptoms. She did not have any pain or weakness, but experienced numbness and tingling in the thenar eminence, the index and middle fingers, and sometimes the ring finger. She had mild symptoms when sitting resting and was woken four to five nights each week. The tingling worsened if she carried heavy groceries. She also experienced tingling when driving a car.
Dr Evans stated that “Ms Williams carried out, for around 20 years, work involving vigorous and repetitive use of her arms and hands”. In 2001, she developed numbness and tingling in her hands, the right being worse than the left. She was referred to a hand surgeon and provided with hand splints. These assisted, but the symptoms did not disappear. Some years later, the symptoms worsened. She was frequently woken at night by them. She was referred back to a hand surgeon in 2008, who recommended decompression surgery on the right wrist.
Dr Evans referred to Dr Stapleton’s report dated 1 July 2008 and observed that Dr Stapleton “felt that despite the vigorous and constant use of her arms and hands over the years as a registered nurse, the problem was purely a degenerative one”.
Dr Evans diagnosed Ms Williams as suffering from moderately severe carpal tunnel syndrome of the right wrist, associated with flexor tenosynovitis. She developed the tendonitis as a result of overuse of her right hand. He observed that the tendonitis/tenosynovitis resulted in swelling of tendons within the carpal tunnel, and sometimes the development of granulation tissue, resulting in compressing of the median nerve in the carpal tunnel. He concluded that “[t]he problem is clearly related to overuse of her arms and hands at work”. He, however, considered that she was fit for work as a registered nurse in the dialysis unit, but that it would be unwise for her to return to general nursing duties.
Finally, Dr Evans assessed an eight per cent whole person impairment of the right upper extremity (incorrectly referred to as “left upper extremity”). He noted that there were no symptoms in her left hand and declined to make an assessment in relation to the left arm. He confirmed that maximum medical improvement had occurred, unless the symptoms were corrected by surgery. He also confirmed his opinion that “the whole person impairment is substantially a result of Ms William’s [sic] employment with Orange Base Hospital”.
Dr Stapleton, hand, plastic and reconstructive surgeon, prepared a medicolegal report at TMF’s request dated 2 July 2008. He noted the nerve conduction studies in 2002 showed bilateral carpal tunnel syndrome, more severe on the right. At that time, Dr Kwa recommended surgery, but Ms Williams did not wish to accept that surgery was the solution. Dr Stapleton noted that she had recently attended on Dr Kwa, who again recommended surgery, which Dr Stapleton recorded Ms Williams rejected “because I’m so scared”.
Dr Stapleton considered that the date of diagnosis was significant because, in 2001, Ms Williams was 47 years old and the majority of sufferers of carpal tunnel syndrome are female and present when aged between 48 and 54 years of age. He noted that their presentation for treatment was equal whether they were in employment or not working. Dr Stapleton stressed that the condition was a degenerative problem genetically predetermined and was not caused by repetitive activities. The pathology was not aggravated by activities in the workplace or at home.
The doctor recorded a history that Ms Williams had worked as a registered nurse for 31 years and was continuing to work full time, currently in the dialysis unit. He noted that, as far as carpal tunnel was concerned, she was not aware of a family history. She was not diabetic and was not aware when precisely menopause began because she had a hysterectomy at age 43 years.
On examination, there were no signs of epicondylitis or de Quervain’s tenosynovitis. However, Ms Williams had sensory loss in her fingers and the specific test of carpal tunnel, the Phalen’s test, was positive on the right and negative on the left. Dr Stapleton noted that her symptoms developed slowly and had gradually worsened with time. Because the underlying problem was a predisposition for carpal tunnel syndrome, Ms Williams’s employment with the Hospital was not the cause of her condition and her employment was not a substantial contributing factor by way of cause or aggravation. He conceded that the cause was unknown, but the condition was regarded as a genetically predetermined problem. He considered that she was fit to continue working in the dialysis unit without restriction. Her prognosis was poor and, if she continued to resist surgery, the compression on the nerve would eventually cause permanent damage, which may not be resolved by surgery.
Dr Stapleton, in his report dated 10 December 2009, restated his opinion that Ms Williams’s carpal tunnel syndrome was not occupationally-related. Dr Stapleton disputed Dr Evans’s conclusion that there was a correlation between tenosynovitis and carpal tunnel syndrome. Dr Stapleton observed that Dr Evans’s view that repetitive activity caused secondary swelling to tissue around the wrist, which applied pressure to the median nerve, was not supported by clinical studies. Further, the introduction of the MRI confirmed that the swelling that compromised the median nerve beneath the carpal ligament was swelling within the nerve itself.
Dr Stapleton confirmed that carpel tunnel syndrome mainly affected menopausal women. He reiterated his opinion that the worker’s employment was neither a substantial contributing factor causing the condition, nor was it aggravating, accelerating or exacerbating the condition. Flexing the wrist and compromising the median nerve causes the symptoms. Flexing the wrist, which can occur at work or at home, does not make the condition worse. The symptoms experienced at night occur because the body fluid equalises and provides extra pressure to the median nerve. Further, he stated that he did not understand what Dr Evans meant by “over use”, and suggested that, if overuse was deemed injurious, concert pianists would be in a very dangerous occupation.
The doctor proffered his opinion as the author of the largest Australian study of carpal tunnel and occupation titled ‘Occupation and Carpal Tunnel Syndrome’ published in the Australian and New Zealand Journal of Surgery (2006):76, 494-496. He annexed a copy of the study to his report. This report concluded that carpal tunnel syndrome is genetically predetermined and most of the “significant contributing factors” were constitutional in nature. Other contributing factors are diabetes, menopause, thyroid disorder and obesity. Further, he concluded after reviewing a number of studies, and after studying all the patients that presented between 2000 and 2002 for medicolegal examination, that there was no evidence that workers’ employment in occupations involving repetitive movement or hard traumatic labour appear with the condition more frequently than those not so employed.
ARBITRATOR’S DECISION
The Arbitrator preferred the worker’s medical evidence over that of Dr Stapleton. Based on the medical and lay evidence (the worker’s statements), he was satisfied that she had injured both her left and right arms and her condition arose out of, or in the course of, employment (Reasons [24]). He accepted the opinion of Dr Howe that the cause of the carpal tunnel syndrome was “repetitive and strenuous use of her arms” and Dr Evans’s opinion that the problem was related to overuse of her arms and hands at work.
The Arbitrator rejected the Hospital’s submission that the fact the worker mostly experienced symptoms at night and first thing in the morning and that she did not experience significant symptoms at work during the day, did not provide a “fair climate” for accepting the treating doctor’s assertion of work-related injury and mitigated against a finding of injury.
He found that the Hospital had failed to provide an adequate explanation for why an allegation of overuse, which produces symptoms mainly at night, was of itself inconsistent with “the gradual aggravation of that body part with work activities and the symptoms being present after the work load has ceased” (Reasons at [14]).
On the issue of injury, the Arbitrator concluded at [27]:
“The authorities have determined that Carpal Tunnel Syndrome is a disease. The evidence discloses that the Applicant has aggravated the Carpal Tunnel Syndrome condition by reason of the repetitive work activities at the Respondent’s workplace. In accordance with Section 16 of the 1987 Act the deemed date of injury is deemed to be the time the worker makes a claim for compensation.”
In assessing the weight to be placed on the medical evidence, the Arbitrator found that the opinion as expressed by Dr Stapleton was diminished in probative value because:
(a) His theory that carpal tunnel syndrome is constitutional and unrelated to occupation was arrived at from statistical figures in his article and not medical criteria.
(b) His report makes it clear that he would disregard any other opinions on the issue and would not take into account occupational activity.
(c) His opinion contrasts with three medical practitioners who provide alternative opinion.
(d) The general practitioner (Dr Howe) and specialist orthopaedic hand surgeon (Dr Kwa) stated that there was some contribution from her work activities.
(e) Dr Stapleton only saw the worker once, but Dr Kwa saw her in 2001 and 2008 and the GP had the opportunity of observing the onset of carpal tunnel syndrome, having been the treating doctor since at least 2001.
(f) The worker’s three medical practitioners have taken more detailed histories of her nursing activities. In contrast, Dr Stapleton did not take into account the lifting and twisting activities in the surgical ward and the dialysis unit.
The Arbitrator also found that, pursuant to section 9A, employment was a substantial contributing factor to the injury. At [26] of his Reasons, in applying the relevant subsection of section 9A(2), he found:
“a) The time and place of the injury
The Applicant has provided in her Statements evidence of her duties at work as a Registered Nurse at Orange Base Hospital since she commenced employment in 1990. The Applicant was carrying out the same duties in 2001 when she became aware of the onset on [sic] numbness and tingling in both her hands. This numbness and tingling in both hands continued until January 2008 when she became aware of a further onset of bilateral arm symptoms. These symptoms included:-
(i)numbness and tingling in the palm, index, middle and right fingers of the right hand
(ii)An increase in the tingling sensation of the right hand after lifting heavy patients.
In view of these facts I determine that the Applicant suffered an injury at Orange Base Hospital during working hours.
b) The nature of the work performed and the particular tasks of that work
Please see the Applicant’s Statements and in particular paragraphs 2, 5 and 6 of the Statement attached to the Application to Resolve a Dispute and paragraphs 2, 3, 4 and 5 of the Statement annexed to the Application to Admit Late Documents dated 26 November, 2009.
In view of the evidence contained in the Applicant’s Statements I am satisfied on the balance of probabilities the Applicant was performing work duties in the nature of repetitive lifting and twisting activities at her place of employment.
c) The duration of the employment.
The Applicant’s employment has been over a period of 20 years as a general nursing sister and more recently she has been transferred to the Dialysis Unit where she can avoid the heavier repetitive use of her wrists and arms. In view of this uncontested evidence the duration of the employment is not a factor to be considered.
d) The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment.
The evidence discloses that the Applicant does not play sport and the only evidence of her activities outside the workplace are [sic] participation in a Filipino dancing group. Therefore there is no evidence that the Applicant participates in activities which require repetitive use of the arms and wrists outside the activities at the hospital other than normal domestic duties. Also see Report of Dr Evans who notes the Applicant has some problems carrying shopping bags and putting on earrings. These activities would normally occur approximately once a day and do not require any repetitive use of the wrists and arms. Accordingly I find that a similar injury could not have happened on the evidence at about the same time or at the same stage of this worker’s life.”
SUBMISSIONS, DISCUSSION AND FINDINGS
Ground One: Injury
The appellant submits that the Arbitrator’s conclusions were based on evidence that the only work performed by Ms Williams that may have contributed to the aggravation of her condition was the assembling and disassembling of dialysis machines for about 45 minutes per day, and the cannulation of patients for an additional 15 minutes per day, plus some additional time spent lifting patients.
This is not an accurate assessment of the evidence. Whilst the Arbitrator specifically referred to paragraphs 4 and 5 of the worker’s supplementary statement (dealing with the dialysis machines and cannulation), at [24] of his Reasons he makes it clear that he took into account the totality of the lay and the medical evidence. That evidence established that Ms Williams engaged in other work alleged to have given rise to an aggravation of her condition, including lifting patients, adjusting intravenous drips, moving, showering, and transferring patients from bed to bed, and adjusting the position of beds by operating a winding mechanism.
The appellant submits that the opinions expressed by Dr Howe have no probative value and should be dismissed as a bare ipse dixit (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (Hevi Lift)). Further, the appellant submits that Dr Howe’s reports are based on speculation or unsubstantiated assumption, and fail to conform with Rule 15 of the Workers Compensation Commission Rules 2006. Reliance is also placed on Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) per Heydon JA at [85]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds) per McColl JA; and Round the Clock Transport Services Pty Limited v Flynn [2007] NSWWCCPD 204 (Flynn).
Ms Williams submits that Dr Howe’s evidence does not amount to an unsubstantiated assumption and should not be rejected on that basis, although no submissions are advanced to overcome the Hevi Lift objection.
I accept that Dr Howe’s report failed to disclose the history he obtained or the facts he relied on to reach his conclusions. The doctor’s notes are not in evidence and it is impossible to tell precisely what information he relied upon in order to form his opinion. As stated in his Reasons at [24], the Arbitrator reached his conclusions by taking into account the totality of the lay and medical evidence. Therefore, the extent to which he relied on Dr Howe’s opinion is not clear. However, I accept that Dr Howe’s evidence was of limited weight.
Similarly, the appellant submits that no reliance can be placed on Dr Kwa’s report, which the appellant describes as a “vague and otherwise unexplained report”. The appellant highlights the fact that the history of symptoms referred to by Dr Kwa in his report of 19 March 2002 (incorrectly referred to as the report of 2001) did not coincide precisely with the development of symptoms referred to in his report of 15 January 2008.
The appellant submits that the Arbitrator’s conclusions, to the extent that they were based on Dr Kwa’s evidence, were mere conjecture or surmise (Luxton v Vines [1952] HCA 19 (1952) 85 CLR 352 (Luxton). Even if it is accepted that employment was a possible explanation, this does not permit the finding made by the Arbitrator. In this regard, it is submitted that, in order for the worker to succeed, the evidence made available “must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of mere conjecture”. Further, the worker’s burden is not satisfied merely by evidence that it is possible that a causal connection exists (per Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 273 [80] (Seltsam)). Finally, on this issue, the appellant submits that, in light of Dr Kwa’s reference to significant symptoms outside of the respondent’s employment, no reliance should be placed on his evidence.
Whilst there may be some discrepancies in the histories recorded by Dr Kwa in his reports of 19 March 2002 and 15 January 2008, which is unsurprising given the substantial interval of time between them, the symptoms that he describes are generally consistent with the worker’s evidence and, in my view, provide a fair climate for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 at 509-10). In particular, he accepted the worker’s complaints of symptoms continuing since 2001 and becoming “worse in recent times”.
Dr Kwa clearly expressed his opinion that there was a causal relationship between Mrs Williams’s work activities and her condition (see [38] above). Whilst I accept that his opinion was equivocal in terms of the extent to which the employment contributed to her injuries, which will be relevant to a consideration of whether the worker has satisfied the provisions of section 9A of the 1987 Act, I reject the submission that his evidence was no more than mere conjecture or surmise, or only gave rise to an inference. He clearly expressed the view that there was a direct causal relationship between the worker’s employment and her condition. I reject the submission that Dr Kwa’s evidence merely gave rise to a “possible” causal relationship between the condition and the worker’s employment. The Arbitrator’s conclusions were not mere conjecture or surmise, but were based on probative and relevant expert evidence.
The appellant also attacks the reliability of, and the weight to be attached to, Dr Evans’s opinion (appellant’s submissions paragraphs 36 to 47). Firstly, it is submitted that the doctor’s report is internally inconsistent and his reasoning contradictory due to his finding that the worker suffered carpal tunnel syndrome in both hands.
I do not accept the submission. There is ample evidence to support the conclusion that the worker suffered from an aggravation of carpal tunnel syndrome in both hands as a result of undertaking repetitive duties in the course of her employment with the appellant. Dr Evans’s history carefully noted that the worker’s duties included lifting of patients, adjusting of intravenous drips, giving injections, washing, moving and showering patients. In her evidence before the Arbitrator, the worker named lifting patients (T6.16), assembling and disassembling the dialysis machines (T7.14), and placing pressure on patients’ wounds after the removal of syringes (T9.17) as activities involving the use of her hands. Dr Evan’s history provided a fair climate for the acceptance of his opinion.
Dr Evans’s diagnosis of bilateral carpal tunnel syndrome was also supported by the nerve conduction tests undertaken by Dr Gordon in February 2002.
In the alternative, it is submitted that, if Dr Evans’s opinion is accepted in respect of the overuse of the right hand, he has failed to explain why the condition is asymptomatic in the left arm. In this regard, the appellant relies on Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 (Honeysett). The reference to Honeysett is to demonstrate the point that, where a plaintiff relies on circumstantial evidence to prove causation, the plaintiff must show that the circumstances raise the more probable inference in favour of what is alleged. It is not sufficient that the circumstances give rise to conflicting inferences of equal degree of probability or plausibility. I do not accept that this was a case of conflicting inferences. The case was determined, correctly in my view, by assessing the weight to be attached to the lay and expert evidence. For reasons I shall come to, I believe the Arbitrator’s assessment of the evidence was correct. Once he assessed the diminished weight to be attached to Dr Stapleton’s evidence, it could not be said this was a case of competing inferences, as the weight of evidence was firmly in the worker’s favour.
In support of its submissions concerning the weight to be given to Dr Evans’s report, the appellant submits that the following matters should be taken into account: first, the worker’s own evidence that she performs work duties that aggravate her condition for only 45 minutes per day (including stripping the dialysis machines). I do not accept this accurately reflects the worker’s evidence. With respect to the dialysis machines, her evidence was that it took her about 10 minutes to disassemble the machine and about the same time to reassemble it, making a total of 20 minutes per machine (T8.25). She was responsible for three machines, so that the task of assembling and disassembling the dialysis machines occupied at least an hour per day. The appellant’s submission also overlooks the worker’s evidence concerning the range of additional tasks that aggravated her condition, including winding beds, lifting of patients, bathing patients, placing pressure on fistulae, and setting up and adjusting drips.
Second, the appellant submits that Dr Evans’s report is internally contradictory, in that he expressed the opinion that the worker remains fit to undertake her duties in the dialysis unit. I reject that as a basis for diminishing the weight to be attached to Dr Evans’s report. The worker has never alleged that she is not fit to continue carrying out her duties. There is nothing inconsistent in the doctor forming the view that those particular duties caused or aggravated the worker’s condition, but accepting that the extent of the aggravation is insufficient to incapacitate her.
The third factor the appellant submits ought to be taken into account in assessing the weight to be attached to Dr Evans’s report concerns the worker’s evidence that she suffers mild symptoms at work, but equally suffers the same mild symptoms whilst at rest or in the morning. Other than making the submission, the appellant has not pointed to any evidence or authority which would suggest that such a pattern of symptomatology is inconsistent with the diagnosis of carpal tunnel syndrome occurring in the circumstances described by the worker.
Fourth, the appellant submits that regard should be had to the fact that the worker suffers significant symptoms carrying shopping and whilst driving. Again, the appellant has offered no evidence or authority to demonstrate that such a finding would be inconsistent with carpal tunnel syndrome arising from her employment.
Finally, the appellant submits that the weight to be attached to Dr Evans’s report is diminished by the diagnosis of carpal tunnel syndrome in the non-dominant left hand, which, the appellant alleged, has not been “overused”. For the reasons I have already given, I reject that submission. Ms Williams’s work required her to use both arms.
The appellant submits that there are several possible competing causes (of injury) stated in Dr Evans’s alleged ‘flawed’ report “and that when read properly it does not support an inference that the Respondent worker’s employment was the cause of onset, or of aggravation, of her condition”. This submission is completely without merit. Dr Evans’s opinion is in the clearest possible terms; “the problem is clearly related to overuse of her hands and arms at work”.
I am not persuaded that there is any valid reason to diminish the weight to be attached to Dr Evans’s opinion. There has been no challenge to his qualifications or expertise to express an expert opinion on the worker’s condition. The facts upon which he has relied coincide with the worker’s accepted evidence, or, at the very least, provide a “fair climate” for the acceptance of his opinion (Paric). Dr Evans has provided a rational and plausible explanation for his opinion, namely moderately severe carpal tunnel compression of the right wrist, associated with flexor tenosynovitis and tendonitis as a result of overuse of the right hand. In my view, Dr Evans’s report conforms to the requirements for the acceptance of expert evidence per Hevi Lift, Makita and Edmonds. I see no error by the Arbitrator in accepting his views in support of the worker’s case.
In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry), Burke CCJ held carpal tunnel to be a “disease”, saying (at [57]):
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the
body to cope with repeated stress imposed upon it and reacts to that stress by
developing swelling, pain and loss of function as a consequence. That seems to
me to be classically a disease process. Where work is the source of the relevant
stress it connotes to me that the worker has received injury either by the
contraction or aggravation of a disease.”Perry was referred to with approval in the Court of Appeal by Mason P in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247.
For the reasons given by the Arbitrator and for these additional reasons, I agree with the Arbitrator’s conclusion that the worker suffered a disease condition to which section 16 of the 1987 Act applies, namely bilateral carpal tunnel compression of both wrists, aggravated as a result of undertaking repetitive duties in the course of her employment with the appellant. I am satisfied that the aggravation is continuing.
Ground Two: Causation
The appellant submits that the Arbitrator reversed the onus of proof in determining the question of causation. It relies on the following passage:
“There is no reasonable explanation given by the respondent as to why the applicant’s symptoms are required to be experienced during the course of the day and cannot appear following the completion of a working day. In other words an allegation of the overuse of the wrists which produces symptoms mainly at night is not by itself inconsistent with the gradual aggravation of that body part with work activities and the symptoms being present after the workload has ceased”.
The submissions in support of this ground are: first, it is incumbent on the worker to prove that her condition resulted from her experiences at work, not for the respondent to prove that the circumstances found are inconsistent with the worker’s claims (per McDougall J in Honeysett); second, the worker must prove that, despite reporting symptoms of equal or greater severity after work as those symptoms experienced at work, her condition is consistent with onset or aggravation due to work activities, and; third, having misdirected himself as to the onus of proof, that misdirection (coupled with his acceptance of the worker’s unexplained and unqualified medical opinions) caused him to fall into appellable error.
The worker submits that the Arbitrator correctly applied the onus of proof, but, unhelpfully, the submission is not supported by any cogent argument or authority.
The facts in this case are quite different from those with which the court dealt in Honeysett. In that matter, the worker was injured in circumstances where he was using a spanner with considerable force to free a nut from a bolt where both had become rusted together. Whilst in the course of doing so, there was a sudden power outage, leading to a blackout. At that precise moment, the nut became free of the bolt, with the result that Mr Honeysett fell and was injured. The question of causation concerned the extent to which, if any, the power outage or, more accurately, the consequent blackout, contributed to Mr Honeysett’s accident.
In this case, there is no dispute as to the duties being undertaken by Ms Williams alleged to have given rise to her injuries. She was not challenged on her statements concerning the nature and extent of her duties, and nor did the appellant avail itself of the opportunity to cross-examine her when she gave evidence before the Arbitrator.
The Arbitrator determined the case based on his consideration of the worker’s lay evidence and the expert medical evidence tendered in her case. This was not a case, as Honeysett was, of evaluating circumstantial evidence. It was a case of evaluating the uncontested lay and objective expert evidence.
At [14] of the Reasons (referred to at [56] above), the Arbitrator considered, but rejected, the appellant’s submission that the acceptance by Dr Evans of nocturnal symptoms put the facts beyond a “fair climate” for the acceptance of the doctor’s opinion. On the contrary, the facts Dr Evans relied upon in forming his opinion substantially coincided with the worker’s uncontested evidence. It was therefore admissible and material (Paric). In rejecting that submission, correctly in my view, the Arbitrator was not reversing the onus of proof. It is clear from a careful reading of the judgment as a whole that he accepted it was the worker’s onus to establish her condition was either caused or aggravated by her employment. This is illustrated by his statement at [24] of the reasons, where he said “I find the Applicant has established on the evidence that she injured her left and right upper extremities and her medical condition arose out of or in the course of her employment”.
Once the worker had established her case at least to a prime facie level, the onus of establishing that the dominance of the nocturnal symptoms was more consistent with the respondent’s case of congenital onset of the condition, rested upon the respondent in any event (Watts v Rake (1960) 108 CLR 158; [1961] ALR 333).
Even if I am wrong and the Arbitrator did reverse the onus of proof, it would not make any difference to the outcome of this appeal because, on a review of all the evidence, I have reached the same conclusions as the Arbitrator.
Ground Three: Dr Stapleton’s evidence
The appellant submits that the Arbitrator erred in rejecting and failing to give adequate weight to the expert evidence of Dr Stapleton.
The appellant submits that Dr Stapleton’s opinion should be accepted, given his superior expertise, and further submits that the Arbitrator erred in asserting that Dr Stapleton’s opinion was “statistical and not medical”. The appellant submits that Dr Stapleton’s opinion is indeed a medical opinion, which ought to have been relied upon.
The appellant submits that Dr Stapleton’s opinion should not have been rejected because of an alleged failure to take into account the totality of the employment activities undertaken by the worker in her occupation.
The appellant submits that the Arbitrator would have been entitled to conclude “as a matter of common sense” that Dr Stapleton, as a medical practitioner, would be well aware of the duties required of a registered nurse.
The appellant submits that the Arbitrator erred in preferring Dr Evans’s opinion to that of Dr Stapleton. Firstly, because Dr Stapleton’s opinion is supported by published medical literature, whereas Dr Evans’s opinion is, in the appellant’s submission, not logical or probative, “given the reported symptoms”.
It is submitted that the use of epidemiological evidence to determine questions of causation is an accepted practice (Seltsam) and that the Arbitrator was in error in rejecting Dr Stapleton’s report. Further, the Arbitrator was obliged to consider the study to which Dr Stapleton referred (Seltsam, at [98]).
Notwithstanding the absence of an accurate history, the appellant submits that Dr Stapleton’s opinion is “more aligned with the actual chronology and facts” in the present matter, referring to the doctor’s report of 10 December 2009, where he makes reference to nocturnal and early morning discomfort.
Support for Dr Stapleton’s opinion may be found from the fact that the worker’s capacity to continue working between 2001 and 2008 is consistent with Dr Stapleton’s opinion that the condition is constitutional and degenerative in nature, and would deteriorate regardless of activity in the absence of surgery. Further, it is submitted that Dr Stapleton’s opinion is consistent with the worker suffering from carpal tunnel syndrome in the left hand, albeit asymptomatic (allegedly in the absence of overuse of the left hand).
Dr Stapleton’s explanation of why the pathology evident in carpal tunnel syndrome affects the wrist and the median nerve (involving nocturnal symptoms) was an issue that was not addressed by Dr Evans.
The appellant submits the Arbitrator has not only erred in rejecting Dr Stapleton’s opinion, but that Dr Stapleton’s opinion should be preferred over the evidence relied on by the worker.
The worker rejects the appellant’s submissions and supports the findings made by the Arbitrator with respect to Dr Stapleton’s evidence. She submits that Dr Stapleton failed to take any history whatsoever. She submits that the doctor reached his conclusions without reference to the particular facts of her claim. Further, she submits that Dr Stapleton’s opinion is “unbalanced, factually in error and biased”.
The worker rejects the submission that weight should be given to Dr Stapleton’s opinion because of his “superior expertise”.
At [24] of his Reasons, the Arbitrator concluded that he preferred, “on balance”, the worker’s medical evidence to that of Dr Stapleton. For the following reasons, I agree with the Arbitrator’s conclusions.
Dr Stapleton’s failure to take any history of employment activities or to even comment on Dr Evans’s history of the employment activities demonstrates that he was expressing a generic view regarding the aetiology of carpal tunnel syndrome irrespective of the particular facts of this case.
I reject the submission that this omission is overcome by accepting that, “as a matter of common sense”, Dr Stapleton, as a medical practitioner, would have been well aware of the duties required of a registered nurse. Whether Dr Stapleton’s knowledge of the duties required of nurses generally are consistent with the duties required of Mrs Williams is a matter of conjecture.
I accept the appellant’s submission that the use of epidemiological evidence to determine questions of causation is an accepted practice (Seltsam). However, contrary to the appellant’s submission, the Arbitrator did not reject the evidence; he merely preferred, “on balance”, the worker’s expert evidence.
I reject the submission that the worker’s capacity to continue working between 2001 and 2008 provided added support for the acceptance of Dr Stapleton’s opinion. To her credit, the worker has never complained that her condition is incapacitating, notwithstanding the fact that her symptoms persisted and worsened over that period. The fact that the worker has been able to continue working is not a factor which assists one way or the other in evaluating the evidence on the causation issue.
A further ground advanced by the appellant for the acceptance of Dr Stapleton’s opinion concerns the alleged failure by Dr Evans to comment on Dr Stapleton’s view expressed in his further report of 10 December 2009. To put this submission in context, it is necessary to explain the background to the further report. At the arbitration hearing, the worker's solicitor made a late application to call oral evidence from Mrs Williams. Over objection by counsel for the employer, the Arbitrator allowed Mrs Williams to give evidence subject to any application for an adjournment if the employer was prejudiced by the evidence given. At the completion of Mrs Williams’s evidence, an application for an adjournment was made on the basis that the employer was unable to meet the additional evidence. The Arbitrator then granted an adjournment “to cure any prejudice that it (the employer) has experienced by reason of the late evidence”.
Furthermore, the report dated 10 December 2009 was admitted in evidence by the Arbitrator during a telephone conference between himself and the parties on 18 December 2009. A timetable was then set for the filing of written submissions by the worker by 18 January 2010. This would have provided the applicant's solicitor with little or no opportunity to arrange for a further report from Dr Evans.
It also seems to me that a further report from Dr Evans was not required, as Dr Stapleton's further report of 10 December 2009 merely critiqued Dr Evans’s report and repeated his previously expressed views concerning genetic predisposition to carpal tunnel syndrome. It made no attempt to deal with any prejudice arising from the evidence given by Mrs Williams at the arbitration hearing.
Dr Stapleton’s opinion is based to a large extent on his epidemiological studies. He made no attempt to reconcile his strongly-held views that carpal tunnel syndrome is genetically predetermined to the particular factual circumstances concerning Mrs Williams’s case. In particular, he failed to consider whether the circumstances of her employment could have contributed to the aggravation of her condition. It may reasonably be inferred, in my view, that Dr Stapleton approached the assessment of the cause or aggravation of the worker’s condition with pre-determined views which, in my view, diminished the probative value of his opinion and consequently the weight to be attached to it.
Concerning the submission that Dr Stapleton’s opinion should have been accepted, given his alleged “superior expertise”, there is no challenge to Dr Stapleton’s expertise as a hand, plastic and reconstructive surgeon. However, for the reasons given, Dr Stapleton’s evidence was, on balance, less compelling than the worker’s medical evidence for the reason previously stated.
Ground Four: Substantial contributing factor to the injury - section 9A
In approaching his determination of whether the worker’s employment was a substantial contributing factor to her injury, the Arbitrator was guided by the principles recently discussed by the NSW Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi). The Arbitrator carefully considered the examples raised in section 9A(2) and made specific findings with respect to examples (a) to (d) although, in dealing with the probability of the injury occurring in any event (section 9A(2)(d)), the Arbitrator took into account some aspects of the worker’s lifestyle which were more relevant to a consideration of section 9A(2)(f). He concluded that the provisions of section 9A were satisfied and found that the worker’s employment was a real and substantial contributing factor to her injury.
The meaning of the phrase “substantial contributing factor” was recently discussed by the NSW Court of Appeal in Badawi, where the majority said at [82]:
“First, and perhaps most importantly, the word ‘substantial’, must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision … Here, the concept and purpose of the introduction of s9A was to remove the possibility of compensation for injury with only a ‘remote or tenuous connection with work’. This was the purpose of the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer… The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.” (emphasis added)
There is a relevant aggravation or exacerbation of the disease for the purposes of the definition of injury in section 4 of the 1987 Act if the symptoms and restrictions emanating from it are “more grave, more grievous or more serious in its effects on the patient” Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 639 (Semlitch)).
Employment need only be a substantial contributing factor to the aggravation, not to the disease process overall (Murray v Shillingsworth [2006] NSWCA 367 (2006) 68 NSWLR 451; 4 DDCR 313; Perry and Cant v Catholic Schools Office (2000) 20 NSWCCR 88).
The appellant submits that the Arbitrator was in error in that he failed to address:
(i) the lack of contemporaneous evidence from 2001 relating any symptoms to her employment duties;
(ii) Dr Kwa’s statement in 2002 that the respondent worker did not have symptoms during the day and did not have any symptoms that impeded her work duties, and
(iii) Dr Kwa’s equivocal opinion regarding the extent of the contribution by the worker’s employment to her condition.
With respect to the Arbitrator’s analysis of section 9A(2), the appellant submits the Arbitrator erred by:
(a) erroneously finding that the applicant suffered injury ‘at Orange Base Hospital during working hours’;
(b) failing to address ‘time and place’ adequately. Regarding an alleged aggravation in or about 2008, the appellant submits that the respondent worker’s statements are silent on both the time and cause of increased aggravated symptoms. The Arbitrator’s reference to the respondent worker’s described symptoms equally does not address the ‘time and place’ of any aggravation injury. In addition, the appellant notes that evidence provided by Dr Evans reported equal symptoms at work and at rest, as well as shopping and driving. The appellant submits that the Arbitrator’s analysis of section 9A(2)(a) is unexplained and, in the absence of such explanation, remains mere conjecture or surmise: Luxton;
(c) considering irrelevant factors under his analysis of section 9A(2)(d). The Arbitrator, in coming to an opinion on this aspect, referred to the respondent worker not playing sport and participating in Filipino dancing. He also referred to the respondent worker carrying shopping and putting on her earrings. The appellant submits those factors, if relevant, are to be considered under section 9A(2)(f) of the Act, not under Section 9A(2)(d);
(d) failing to consider the more relevant enquiry, ie, to address the evidence of Dr Stapleton that carpal tunnel syndrome is a constitutional condition. Further, that the respondent worker suffers carpal tunnel syndrome in her left hand, which has not been subject to ‘overuse’;
(e) failing to address section 9A(2)(e) of the Act, which the appellant submits has led the Arbitrator into error;
(f) erroneously addressed factors relevant to section 9A(2)(f) when purportedly addressing section 9A(2)(d), and
(g) by misdirecting himself with respect to the evidence that the worker suffered symptoms driving, shopping, whilst at rest and when putting on her earrings, which was directly relevant and indicative of the worker suffering symptoms when away from the workplace.
The worker denies that the Arbitrator made any error and, other than referring to Dr Evans as providing the Arbitrator with ample evidence to make the findings he did, no other submissions were advanced on the appeal.
Although the Arbitrator made no specific reference to Dr Kwa’s opinion concerning the extent of any contribution to the worker’s condition arising from her employment, it is clear from a reading of his reasons as a whole, and especially [24], that he took into account all of the lay and medical evidence in forming his conclusion. I infer that that includes Dr Kwa’s opinion. Whilst Dr Kwa’s first report in 2002 failed to identify a history of symptoms occurring at work, his subsequent report in 2008 has a more comprehensive history of symptoms dating back to 2001. In that report, the doctor noted a history of ‘pins and needles’ at night and daytime symptoms occurring when driving, and occasional symptoms at work, mainly when required to grip strongly onto objects, such as when connecting drip sets.
The appellant submits that the inability of Dr Kwa to say whether or not work contributed in a “significant” way is further evidence that the provisions of section 9A have not been satisfied. Whilst I accept that Dr Kwa was equivocal in his opinion regarding the extent of the contribution from work activities to the cause or aggravation of Ms Williams’s condition, he was not equivocal that there was some contribution. He said, “[i]n cases like hers I feel there is some contribution from her work activities but whether this is significant or not I cannot say”.
Dr Evans, on the other hand, was firmly of the view that the worker’s condition was the result of overuse of her hands and arms at work. For the reasons I have discussed earlier, Dr Howe did not contribute to an assessment of whether the worker’s employment was a substantial contributing factor and, to that extent, his evidence may be disregarded on this issue.
Whether the employment concerned was a substantial contributing factor to the injury for the purpose of section 9A is a question to be decided on the evidence overall, including a consideration of the matters in section 9A(2). It is not purely a medical question (Awder Pty Ltd trading as Peninsular Nursing Home v Kernick and Anor [2006] NSWWCCPD 222 at [31]). Relevant factors include: first, the consistency of symptoms between 2001 and the hearing; second, the nature of the worker’s duties that put stress on her hands and wrists and; third, the support from her doctors.
The submission that the worker did not suffer symptoms during the working day is incorrect. The worker’s evidence is that she suffered tingling sensations after pressing on fistulae (T9.17) and that her thumb became sore after stripping the dialysis machines (T8.55). The worker’s evidence concerning those symptoms was not challenged.
With regard to the Arbitrator’s analysis of section 9A(2), I agree with his observations, but I would add the following. The worker has been employed by the appellant for approximately 20 years. Her description of her duties involving a range of activities requiring the use of her hands and arms is conceded. The fact that the worker may suffer symptoms when at rest or in other non-work-related circumstances is not necessarily inconsistent with a finding that her employment duties were a substantial contributing factor to her injury.
The appellant submits that the Arbitrator considered irrelevant factors in his analysis of section 9A(2)(d). Whilst I accept that part of the Arbitrator’s analysis under section 9A(2)(d) comprised factors that were probably more correctly factors to be considered at section 9A(2)(f), I reject the submission that they were irrelevant considerations, as they tended to establish that the probability was that there was nothing of relevance socially, domestically or with respect to any sporting endeavours that would have been likely to have caused the worker’s injury independent of her employment.
The appellant submits that, in weighing up the probability of similar injury, the Arbitrator should have had regard at this point to the evidence of Dr Stapleton. I accept that, in considering the evidence relevant to section 9A(2)(d), the Arbitrator failed to address Dr Stapleton’s evidence. However, that omission makes no difference to the outcome of the appeal, because, for the reasons previously stated, the Arbitrator was correct to prefer the evidence of Dr Evans to Dr Stapleton.
Even if it be accepted that the worker’s menopausal state and her age were factors that may have predisposed her to the condition, I remain of the view that, weighing all the evidence, on the balance of probabilities, her employment was more likely to have aggravated her condition than it being due to congenital factors, bearing in mind that the worker need only establish that her employment was a substantial contributing factor to her injury, not the substantial contributing factor (Badawi at [48]).
The appellant submits that the Arbitrator failed to address section 9A(2)(e), which led the Arbitrator into error because the worker was of menopausal age, one of the risk factors identified by Dr Stapleton for the onset of carpal tunnel syndrome. For the reasons given in the preceding paragraph, I reject that submission.
The appellant led no evidence regarding the worker’s actual state of health before the injury. Dr Evans noted she had no previous injuries and I note her only medication is for hypertension. She is otherwise in good health.
For the sake of completeness, I reject the submission that the Arbitrator erred in failing to address the “lack of contemporaneous evidence from 2001 relating any symptoms to her employment duties”. Dr Kwa (2008 report) specifically noted symptoms first occurring in 2001 and continuing thereafter, which had become worse in 2008.
Accepting that Dr Howe’s and Dr Kwa’s evidence did not assist the worker on the section 9A issue, I am satisfied there was sufficient evidence from Dr Evans and Ms Williams for the Arbitrator to conclude that the worker’s employment was a substantial contributing factor to her injuries. I reject the submission that his analysis of the section 9A issue was “unexplained” and amounted to “conjecture” for the reasons given. I find the connection between the worker’s employment and her injuries was real and of substance and the provisions of section 9A are satisfied.
CONCLUSION
Having conducted a review on the merits, I have determined that, for the reasons given in this decision, the Arbitrator’s conclusions are true and correct. I agree with the conclusion that the worker suffered an aggravation of the condition known as carpal tunnel syndrome by reason of repetitive employment requiring the use of her hands and wrists. The effect of the aggravation is continuing. In accordance with section 16 of the 1987 Act, the deemed date of injury is the date the worker made her claim for compensation, namely 20 March 2009.
Given the worker did not make a claim for lump sum compensation in respect of permanent impairment of the left arm, the Arbitrator’s order in paragraph 2(b), referring the matter to the Registrar for referral to an Approved Medical Specialist for assessment of both arms, must be revoked and a new order substituted.
DECISION
The decision of the Arbitrator dated 22 February 2010 is confirmed, save as to paragraph 2(b), which is revoked, and the following order substituted:
“The degree of permanent impairment in respect of injury to the right upper extremity is to be referred to the Registrar for referral to an Approved Medical Specialist for assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment with a deemed date of injury of 20 March 2009, being the date of the Notice of Injury.”
COSTS
The appellant, Greater Western Area Health Service, is to pay Ms Williams’s costs of the appeal.
His Hon Judge Keating
President
1 September 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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