Hagan and Comcare (Compensation)
[2019] AATA 5394
•13 December 2019
Hagan and Comcare (Compensation) [2019] AATA 5394 (13 December 2019)
Division: GENERAL DIVISION
File Number: 2017/3153
Re:Patrick Hagan
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:M J McGrowdie, Senior Member
Date:13 December 2019
Place:Sydney
The reviewable decision of 1 May 2017 is set aside and instead a decision be substituted that the Applicant suffered a compensable injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, namely right-sided cubital tunnel syndrome taken to have occurred on 7 April 2008.
The Respondent is to pay the Applicant’s costs of the proceedings.
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M J McGrowdie, Senior Member
CATCHWORDS
Workers Compensation — Right sided ulnar nerve condition - work as a meat inspector- whether work contributed to a significant degree - when the condition first appeared-liability for injury and compensation
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) - ss 5A(1)(a), 5B(3), 7(4)(b) and 14
CASES
Comcare v Power [2015] FCA 1502
REASONS FOR DECISION
M J McGrowdie, Senior Member
13 December 2019
The Applicant, Patrick James Hagan, born in 1956, brings these proceedings against Comcare in respect of an injury to the ulnar nerve in his right arm said to have arisen as a result of his work as a meat inspector for the Australian Quarantine and Inspection Service (AQIS).
On 1 April 2017 Comcare made a Reviewable Decision declining the claim and subsequently the Applicant brought this application.
ISSUES
The central issue is whether the Applicant’s work as a meat inspector contributed to a significant degree to the aggravation of a right-sided ulnar nerve condition.
There is no dispute that the Applicant does have a right-sided ulnar nerve condition and that its effects are ongoing.
There is a question of when this condition arose given that the Applicant ceased repetitive work involving the right arm and hand in about October 2009 and was made redundant in November 2013. He underwent surgery for the condition in February 2016.
BACKGROUND
The Applicant commenced employment with AQIS in 1995 and worked as a meat inspector from 1996. Prior to AQIS, the Applicant worked in an abattoir. His work with AQIS involved repetitive and forceful use of his right arm while holding a knife in his right hand. This involved considerable strain and there is no real issue that the nature of that work could cause such a condition.
The Respondent argues that the Applicant’s ulnar nerve problems arose in 2014, or 2012 at the earliest, and well after the Applicant ceased doing the work of a meat inspector. The Applicant argues that it appeared as early as 2007 or 2008.
In about 2000, the Applicant began to suffer pain in his right arm and elbow. This was diagnosed as epicondylitis (or “tennis elbow”). He was given an injection and the condition settled. The Applicant made a claim to Comcare, which was accepted. There was no involvement of the right hand at that time.
In about 2007 the Applicant said that he started to experience problems again with his right arm with numbness and tingling going down to his right hand and fingers.
In his statement dated 9 May 2006, he says at [18] that:-
“In 2007 I noticed a developing ache and pain in my right elbow region. I started to feel tingling down my right arm and in my right palm. By 2008 I was constantly aware of the discomfort throughout the elbow region, particularly across the elbow and pins and needles along with numbness in the two digits of my right hand (fourth and fifth fingers) …”
This is the history which the Applicant gave to Dr Pillemer, orthopaedic specialist, whom the Applicant saw for medico-legal purposes.
The Respondent has challenged this history given what is contained in reports of medical consultations after 2007.
On 7 April 2009 the Applicant presented to the Emergency Department of Grafton Hospital complaining of pain and tenderness at the tendon insertion and tingling and numbness in the right hand. The Respondent says that Emergency Department report does not refer to the involvement of any of the fingers of the Applicant’s right hand.
Next is a report dated 31 July 2008 of Dr Jovanovic in which he does note the involvement of the Applicant’s “fingers” generally but diagnoses lateral epicondylitis and possible carpal tunnel syndrome. This is argued by the Respondent as not confirming the Applicant’s current condition of Orbital Tunnel Syndrome which occurs as a result of the compression of the ulnar nerve and is treated as a neurological condition.
The Respondent also points to a nerve conduction study of 19 August 2008 which did not identify any abnormality.
The medical evidence suggests that in the absence of evidence in a nerve conduction study, one is dependent on the clinical signs and symptoms on examination.
The Applicant was examined by Dr Vecchio who reported on 13 December 2010 to the Applicant’s employer. It is recorded that the Applicant “acknowledged pins and needles in the middle, ring and palmar aspects of the right hand”. The doctor diagnosed right lateral epicondylitis and possible right carpal tunnel syndrome. However, it is also noted in the report that clinical facts for carpal tunnel syndrome were negative.
Significantly, it is not noted in the report that there was a complaint of numbness and tingling in the little finger which is characteristic of cubital tunnel syndrome. Also, however, there is no complaint of numbness in the thumb, when numbness and pins and needles in the thumb is a characteristic sign of carpal tunnel syndrome. What is clear is that at that time there was no positive diagnosis of the condition suffered by the Applicant.
In a report dated 16 April 2012 Dr Harrison records that the Applicant complained that “…. in 2007 he noticed the slow onset of discomfort around his right elbow associated with paraesthesias down the lateral aspect of his forearm to the hand on the palmar side involving the index, long, ring and possibly right little fingers, but palmar side only”. Dr Harrison diagnosed epicondylitis and referred to pain from the neck.
Dr Price in a report dated 25 June 2012 records that the Applicant started to develop over four or five years, pins and needles in the middle and ring fingers of the right hand, as well as the palmar aspect of the hand.
Dr Oates in a functional capacity report dated 30 April 2014 noted symptoms including discomfort which radiated to the palm and ulnar two fingers which was accompanied by pins and needles in the right hand. In a further report dated 11 June 2014 the Applicant again complained of symptoms in the 4th and 5th fingers.
DISCUSSION
What is apparent is that the Applicant presented with symptoms in the right arm from 2008 although there was no clear diagnosis. The Applicant did complain of symptoms in the middle finger whereas cubital tunnel syndrome typically involves the ring and little fingers. In evidence, the Applicant said that he did have symptoms in those fingers and there is some inconsistency between the histories recorded and what the Applicant said was the case. The impression I have is that the Applicant was not a particularly good reporter of his problems and that this has led to a degree of confusion as to what is the cause of the Applicant’s condition.
Although carpal tunnel syndrome was considered by some doctors, I believe that it is unlikely that the Applicant did, or has, that condition as there certainly has been no involvement of the thumb or index finger and testing for the condition has been negative.
The Applicant was seen by Dr Pillemer on 31 August 2015 who carried out a careful examination. In his report of 31 August 2015 he records that since 2008 the Applicant has had symptoms in his elbow and right hand. He specifically notes that the Applicant was aware of pins and needles and numbness extending into the medial two digits of his right hand (4th and 5th fingers). He diagnosed cubital tunnel syndrome and very distinct hypoesthesia to pin-prick of the little finger and ulnar half of the ring finger. There was no indication, to Dr Pillemer, that the Applicant showed signs of carpal tunnel syndrome, a much more common condition. Dr Pillemer indicated that the Applicant needed to see an upper limb specialist for possible surgery and referred to a likely nerve conduction study being carried out. A nerve conduction study in January 2016 was positive.
The Applicant came under the care of hand surgeon Dr Coleman on 19 January 2016. He diagnosed cubital tunnel syndrome and carried out surgery on 18 February 2016. At operation Dr Coleman found a constrictive band which he released. The surgery has not been all that successful in relieving the Applicant of his symptoms. According to Dr Pillemer, if a transposition of the nerve had been carried out at the time, rather than waiting to see if the release of the band was sufficient, it would probably have resulted in a better outcome for the Applicant.
The Applicant then made a claim for cubital tunnel syndrome. That is not a diagnosis which is the subject of any such dispute. That the Respondent says is that such a diagnosis was made long after the performed physical work involving his right arm and therefore that condition would not be one where his work with AQIS would be a significant contributory factor.
Professor Youssef provided reports and was called by the Respondent to give evidence. It was his opinion that cubital tunnel syndrome did not become symptomatic until 2014 when the Applicant was not working. As far as the Applicant’s earlier complaints from 2008, it was Professor Youssef’s view that the Applicant could have had carpal tunnel syndrome which subsequently resolved.
I have difficulty with accepting that view for, in my opinion, it is unlikely that there could have been a change in the nature of the conditions suffered by the Applicant given that the Applicant was consistently complaining of problems with his right hand well before he stopped physical work and continued to so complain after.
Dr Pillemer explained that the 2008 nerve conduction study as possibly being conducted when the condition was “sub-clinical” or may in terms of detection on an electro physical basis depend on the diligence of the operator.
Dr Khurana who was called to give evidence by the Respondent conceded that it was possible that there was ulnar neuropathy in 2008 which was “sub-clinical”. Dr Pillemer’s evidence was that nerve conduction studies are usually performed as a way of confirming a diagnosis rather than for the purpose of making a diagnosis. Professor Youssef said in his evidence that nerve conduction studies may, occasionally, be normal in patients with median and ulnar neuropathy. I would regard the negative result from the 2008 nerve conduction study as being relatively neutral.
In an article extracted by Professor Youssef titled Cubital Tunnel Syndrome it is stated that the most common joint of compression of the ulnar nerve is to the elbow. It is also stated that patients often present with paraesthesias in the ulnar nerve distribution. It is further stated in the article that:-
“Paraesthesia and numbness of the ulnar digits is common, but patients will frequently have difficulty localizing their symptoms.”
The article goes on to state that:-
“A complaint of hand and grip problems and atrophy is often seen at presentation.”
The Applicant’s evidence was that he consistently had problems with his right hand while he was working from certainly 2008 and would frequently be dropping the knife he was using.
I accept that the Applicant did have difficulty with localizing his symptoms on presentation to doctors but has nonetheless been consistent about problems in his right hand and with grip strength.
Dr Khurana, called by the Respondent, considered that as the nerve conduction study in 2008 showed bilateral abnormality this suggested that the Applicant’s ulnar nerve condition was constitutional in origin. Given that the Applicant is right handed, only had symptoms on the right side and did highly repetitive work with his right hand. Dr Khurana went on to state that:-
“…..my view on this is there is exacerbation and there’s aggravation and these are symptoms and there’s structural pathology.”
This statement was made in the context of the Applicant’s work duties.
LEGISLATION
The liability to pay compensation is imposed by section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an injury suffered by an employee.
“Injury” is defined in Section 5A(1)(a) to include “a disease”. “Disease” is further defined in Section 5A(b) to include “an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment…..” Various criteria can be considered in determination of whether employment has contributed to a significant degree. Generally, however, it is an evaluative process as referred to in Comcare v Power [2015] FCA 1502 at [93] – [94]. Also, “significant degree” is a “degree that is substantially more than material” (Section 5B(3)).
In the case of an injury by way of a disease, the injury is taken to have happened when the aggravation first resulted in impairment (Section 7(4)(b)).
In the present case, the condition which the Applicant presented himself with in 2008 and which has continued is most likely to be a condition of cubital tunnel syndrome. It is likely that his work as a meat inspector precipitated symptoms and aggravated a constitutional condition. This aggravation has continued notwithstanding that he ceased such duties. It was the work duties that aggravated the underlying condition to a significant degree, that is, the aggravation was substantially more than material given that the aggravation has continued even though he ceased work.
The work was of a nature which required frequent, forceful use of the right arm and hand and the type of work which was of a kind would give rise to the aggravation of the Applicant’s underlying condition. I also conclude that the aggravation continued despite the Applicant ceasing to perform such duties. This suggests the severity of the aggravation. I do not regard it as likely that the Applicant developed symptoms which might be attributed to a different condition from that which he suffered before ceasing such duties.
CONCLUSION
I conclude that the Applicant suffered, by way of aggravation due to the nature of his work, cubital tunnel syndrome and that this is condition has continued. This, in my view, is to be regarded as a compensable injury and is taken as having occurred on 7 April 2008 when the Applicant presented to Grafton Hospital.
DECISION
The reviewable decision of 1 May 2017 is set aside and instead a decision be substituted that the Applicant suffered a compensable injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, namely right-sided cubital tunnel syndrome taken to have occurred on 7 April 2008.
The Respondent is to pay the Applicant’s costs of the proceedings.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of M J McGrowdie, Senior Member
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Associate
Dated: 13 December 2019
Dates of hearing: 23, 24 & 25 July 2018; 17 October 2018 Counsel for the Applicant: Mr J Mrsic Solicitors for the Applicant: Grieve Watson Kelly Lawyers Counsel for the Respondent: Ms S Callan Solicitors for the Respondent: Lehmann Snell Lawyers
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Remedies
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Costs
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Statutory Construction
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