Helen Tuck and Comcare
[2013] AATA 206
[2013] AATA 206
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/2329
Re
Helen Tuck
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 10 April 2013 Place Perth The decision under review is affirmed.
........................................................................
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – applicant employed by Australian Taxation Office – applicant sustained bilateral carpal tunnel syndrome – applicant claimed compensation – applicant's bilateral carpal tunnel syndrome not significantly contributed to by employment – applicant's bilateral carpal tunnel syndrome not a disease – applicant's bilateral carpal tunnel syndrome not an injury – respondent not liable to pay compensation to applicant for bilateral carpal tunnel syndrome – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 5A(1), s 5B and s 14(1)
REASONS FOR DECISION
Deputy President S D Hotop
10 April 2013
Introduction
Helen Tuck (“the applicant”), who was born in January 1950, has been employed by the Australian Taxation Office (“ATO”) since 15 July 1985.
On 8 February 2012 the applicant lodged with Comcare (“the respondent”) a completed Claim for Workers’ Compensation form, signed by her and dated 30 January 2012, in respect of a condition described as:
“ Global hand weakness in left and right hands. Paraesthesias in median nerfe [sic] distribution left hand.”
In that form the applicant indicated that (inter alia):
·she suffered that condition on 16 October 2011 at 9.00 am when “working on computer using various programs” at her usual workplace;
·she first sought medical treatment for that condition on 27 January 2012 from Dr Christopher Cook.
On 15 March 2012 a delegate of the respondent made a determination under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) that the respondent was not liable under s 14 of that Act to pay compensation to the applicant for “bilateral carpal tunnel syndrome”.
Following a request by the applicant for a reconsideration of that determination, a Senior Review Officer of the respondent, on 9 May 2012, made a “reviewable decision” under s 62 of the SRC Act affirming that determination.
On 8 June 2012 the applicant lodged with the Tribunal an application for review of the reviewable decision of 9 May 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T32, pp 1–113) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibit A1 (comprising the applicant’s statement of “key facts” and Attachments 1–9) tendered by the applicant;
·Exhibits R1–R8 tendered by the respondent; and
·the oral evidence of the applicant.
The Applicant’s Evidence
The applicant tendered in evidence her statement of the “key facts” in this matter and she affirmed that the contents of that statement are true and correct.
The applicants statement (part of Exhibit A1) is as follows:
“ 2.1 The Applicant has a vision impairment, congenital Nystagmus.
2.2The Tax Office has a duty to make reasonable adjustments and to make sure that, as far as is reasonable, a worker with an impairment has the same access to everything that is involved in doing and keeping a job as a person without an impairment.The employer would make any appropriate or reasonable adjustments to the work environment to accommodate the worker.
2.3About 1995 the Tax Office provided the Applicant with a large 21” monitor and the Applicant adjusted the screen to a higher resolution but was still unable to view the full program without extra mousing and scrolling.
2.4From May 2000 the Applicant worked as Secretary to the Tax Agents’ Board WA. The Applicant managed the WA team who provided support to the board members, processed tax agent registrations, facilitated the resolution of complaints against tax agents, prepared documents for board meetings and referrals for prosecution.
2.5On 5 October 2004 the applicant lodged an incident report and Comcare claim noting shoulder pain and Bursitis. This was accepted by Comcare and a Logitech Marble Trackball mouse was issued to reduce the shoulder movement. (Att 1)
2.6On 14 February 2005 a further incident report and a Comcare claim were lodged noting exacerbation of shoulder injury. (Att 2)
2.7Between 2006 and 2008 the Tax Office introduced standard 19” flat screen monitors to all staff. No larger monitors were issued.
2.8The Applicant set the screen on a high resolution of 800 x 600 to enable the Applicant to read the font and assist with the work.
2.9On 13 October 2009 the Applicant lodged an OH&S incident report noting wrist pain, sore eyes and headaches. The Applicant was undertaking extra keying work for a project to update tax agent qualifications on the system. (T3). The Applicant was diagnosed with Bursitis in the shoulder.
2.10On 1 January 2010 the legislation changed and as a consequence the WA Tax Agents’ Board was to be abolished after a 12 month transitional period and a new national board set up in Canberra. The Applicant’s role would cease at the end of 2011 and the Applicant was to be transferred to a new role in the Tax Office.
2.11During 2010 the Tax Office introduced a new computer system for the Tax Agents’ Board, iMIS, and also access the Tax Offie Siebel program. The font size on both iMIS and Siebel software was less than the Australian standard of 3 mm as noted in the Capel report commissioned by Comcare in 2010. (T4 para 1.21 & T5 para 25).
2.12The Applicant was required to access iMIS and Siebel to work and was unable to access all the information on the screen at one time and needed to lean forward to view the work and input data as it was unclear and could not see all the work on the one screen. The Applicant needed to increase the screen resolution to 800 x 600 to read the work and this increased scrolling and mousing to access work. (T4 para 1.21)
2.13On 23 August 2010 the Applicant lodged an OH&S incident report noting eye strain, back and wrist strain, due to the small font and need for excessive scrolling with iMIS and Siebel software. (T6)
2.14On 13 December 2010 the Tax Agents’ Board WA closed and the Applicant transferred to the Tax Agent Relationship Management area where the Applicant was responsible for visiting tax agents and assisting them with their practice and lodgements. The Applicant began iLearn training for the Siebel programs and others used by Relationship Managers.
2.15On 20 December 2010 the Applicant went on 4 weeks leave.
2.16The Applicant returned from leave and was directed to undertake an urgent project to archive and destroy all Tax Agent [sic] Board WA files. The Applicant was working in the basement, standing for long periods, lifting boxes, bending and turning, and inputting the data into the computer system. The Applicant was given a deadline of 2 weeks to complete the project.
2.17On 21 February 2011 the applicant lodged and [sic] OH&S incident report noting wrist, shoulder and back pain. (Att 3)
2.18On 5 April 2011 the Applicant was transferred to another area in the Tax Office to undertake the role of TPALS team leader in Issues Management, resolving complaints from tax agents.
2.19The Applicant started working with the new Tax Office Siebel computer system on a regular basis. The Applicant spent a minimum 60% of the day working in the Siebel system to access team cases and reports which were copied and reproduced into an excel spread sheet and allocated to officers. The Applicant was continually opening and closing screens and toggling between programs using the keyboard and mouse. The Applicant increased the screen resolution to 800 x 600 but was unable to see the whole work on the screen and needed to do more mousing and scrolling to undertake the required work.
2.20On 15 April 2011 the Applicant lodged an OH&S incident report as the Applicant had pains in the wrists and arms. The Applicant had a worksite inspection that reviewed the workstation set up and recommended that the Applicant alternate the use of the Logitech Marble Trackball Mouse using both hands and requested dual monitors. (T7)
2.21The Applicant submitted an OH&S business case to the Tax Office and continued to apply for dual monitors. Dual monitors were provided in June 2011.
2.22On 26 August 2011 the Applicant went on 3 weeks leave.
2.23On 1 September 2011 the Applicant’s area began new Lodgment Assistance work. The Applicant’s team changed work practices using other functions of the Siebel computer system, both work and case management.
2.24The Applicant accessed an increased number of computer programs daily leading to increased the [sic] scrolling and mousing. These include: Microsoft Office tools (outlook, Word, Excel, pivot tables); internet; Tax Office specific programs (VIPER, REX, RADR, NTAPT, deferrals, comparison checker, Siebel, mainframe, ESS).
2.25As the team leader the Applicant undertakes an estimated minimum 60% computer work. The Applicant undertakes these duties every day: work allocation; case creation; approvals of work undertaken; meeting minutes and newsletters; reports; business cases; performance reports; manage workflows; manage resources; team plans; manage priorities; monitor progress; quality assurance; communicate via email; training and coaching; internet searches; all requiring screen work. (Att 4)
2.26On 19 October 2011 the Applicant lodged an OH&S incident report noting arm and shoulder pain from working on the computer using various programs. (T8)
2.27On 27 October 2011 the Applicant went on 4 weeks long service leave.
2.28On 7 December 2011 a workplace assessment was undertaken as a result of increased repetitive movements due to Siebel computer program and the small font. It was recommended that the Applicant have dual monitors and two ‘Logitech Marble Trackball Mouse’. (T9)
2.29In December 2011 a second Logitech Marble Trackball Mouse for use on the left hand was supplied.
2.30On 23 December 2011 the Applicant went on 4 weeks leave.
2.31On 27 January 2012 the Applicant visited the doctor with increased wrist pain and was referred to Professor Stokes for review. (T10 & T11)
2.32On 22 February 2012 the Applicant had x-rays of both wrists and the report from Dr Gavin Watson indicated that ‘the osseous structures and articular surfaces of both wrists and hands are normal. No soft tissue swelling or soft tissue calcification.’ (Att 5)
2.33On 24 February 2012 the Applicant had EMG and Dr Peter Silbert’s report states ‘moderately to [sic] severe right median neuropathy at the wrist (carpel tunnel syndrome)’ and ‘mild left median neuropathy at the wrist (carpel tunnel syndrome).’ (T21)
2.34On 15 March 2012 the Applicant received a copy of the report from Professor Stokes stating ‘it is likely and possible that her work position has been responsible for the onset of carpel tunnel and I cannot exclude it as being responsible.’ (T26)
2.35In the week beginning 13 March 2012 the Tax Office upgraded the computer system to Siebel 8.
2.36With the limited flexibility of the contrast, colour and font size of the new Siebel 8 computer system the Applicant was unable to make adjustments to the screen to suit the Applicant’s vision impairment and unable to access all functions on screen, leading to increased scrolling and mousing.
2.37On 26 March 2012 the Applicant lodged an OH&S incident report noting eye strain causing headaches and increase [sic] pain in wrists and both hands. (T27)
2.38On 27 April 2012 the Applicant had a Recovre worksite assessment. The report notes that the ‘Trackball mouse promotes Ms Tuck to fix her wrist on the mouse and continually roll tracking ball with two fingers, potentially exacerbating her carpel tunnel syndrome.’ It was recommended that ‘2 new ergonomic mouse be provided to reduce the amount of fine motor control movements through her fingers and forearms.’ (Att 6)
2.39In June 2012 the Applicant was provided with 2 new ergonomic mouse. (Att 7)
2.40On 13 June 2012 Recovre provided a revised worksite assessment recommending treatment from a Hand Therapist. (Att 8)
2.41On 4 July 2012 the Applicant received a copy of Professor Stokes’ report noting that he ‘cannot exclude that her work situation would have contributed to the development of this carpel tunnel syndrome.’ (Att 9)”
The remainder of the applicant’s statement consists of her responses to certain paragraphs of the respondent’s Statement of Facts, Issues and Contentions which was filed in this proceeding on 14 December 2012. The relevant paragraphs in the respondent’s Statement, and the applicant’s responses thereto, are as follows:
Respondent’s Statement
“2.4 An undated statement by Mr Dean Butler, the Applicant’s manager (T22) states that the Applicant would use the keyboard and mouse on a frequent basis for approximately 60% of the day. Mr Butler also stated that there had been no changes to the Applicant’s normal duties leading up to 16 October 2011.”
Applicant’s response
“2.42 The Applicant disagrees with the facts stated in paragraph 2.4 (T22) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
Mr Butler’s statement of 60% usage is only an estimate based on a general view of the work.
This does not take into consideration the impact the applicant’s visual impairment and the small screen font has on increasing the time spent on computer based work.
Mr Butler is also located in Victoria and has not witnessed the actual work the Applicant undertakes.”
Respondent’s Statement
“2.5 A workstation assessment report by Ms Monique Blackwell (Injury Management Consultant with The Recovre Group) dated 7 December 2011 (T9) states that:
(a)On a scale of ‘occasional’, ‘frequent’ and ‘constant’ computer use adopted by the US Department of Labour :
(1)34 - 66% of an 8 hour day spent using a computer was regarded as ‘frequent use’ (which would equate to 30.6% - 59.4% of the Applicant’s 7.2 hour work day); and
(2)67% or more of an 8 hour day spent using a computer was regarded as ‘constant use’ (which would equate to 60.3% or more of the Applicant’s 7.2 hour work day).
(b)The Applicant’s symptoms were consistent whether she was at work or at home. The Applicant reported she had recently returned from 4 weeks leave and experienced no change of symptoms during that time, suggesting that the aggravating factors may not be solely related to her workstation set up.
(c)The introduction of dual monitors and a second mouse had had a positive impact on the Applicant’s symptoms as the two screens reduced the amount of mouse work and the level of scrolling was shared across both hands.
(d)Only minor adjustments were required to be made to the Applicant’s workstation.” (footnotes omitted)
Applicant’s response
“2.43 The Applicant disagrees with the facts stated in paragraph 2.5(b) (T28) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
The symptoms of carpel tunnel are constant.
The incident reports were lodge [sic] by the applicant a short time after returning from leave as a result of constant computer based work exacerbating carpel tunnel symptoms.
The aggravating factors include workstation setup, the type of work (being computer based), and the computer systems.
2.44The Applicant disagrees with the facts stated in paragraph 2.5(c) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
Dual monitors were supplied after the onset of wrist pain.
The Recovre report notes that the Logitech Marbel [sic] Trackball mouse supplied was ‘potentially exacerbating her carpel tunnel syndrome’. (Att 6)
Sharing the mouse with both hands did relieve some pain in the right wrist, however, it exacerbated the pain in the left wrist.
With the upgrade to Siebel 8 computer system and the issues with the small font and increased mousing and scrolling, mouse work was not reduced.”
Respondent’s Statement
“2.6 Dr Cook’s report dated 9 February 2012 (T17) stated that he diagnosed the Applicant with carpal tunnel syndrome pending the results of EMG investigation. Dr Cook stated:
‘My knowledge of carpal tunnel syndrome (CTS) is rudimentary compared with a neurologist’s.
- I understand that the condition is common in middle aged women.
- Work-related CTS is more common in those who do repetitive work with flexed wrists and those who perform rapid finger and wrist motion under load ie heavy manual work.
- This may be an incidental condition due to Ms Tuck’s age and a specialist’s opinion would be more appropriate to establish the diagnosis and potential cause.’”
Applicant’s response
“2.45 The Applicant disagrees with the facts stated in paragraph 2.6(d) [sic] (T17) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
Dr Cook indicated that he did not have the knowledge to have an opinion and referred the Applicant for a specialist review.
Dr Cook’s statement cannot be relied on as fact.”
Respondent’s Statement
“2.7 An EMG report by Dr Peter Silbert (Neurologist) dated 24 February 2012 (T21) confirmed the Applicant’s diagnosis of bilateral carpal tunnel syndrome, which was found to be mild on the left side and moderately severe on the right side.
2.8A report by Professor Stokes (Consultant Neurosurgeon) dated 28 February 2012 (T23) states that the Applicant had reported that her carpal tunnel symptoms had started in September 2011, were worse on her left side than on her right side and that she used her left hand to perform most of the mouse activities. Professor Stokes reported:
‘I feel at this stage that she probably does have bilateral carpal tunnel and I am not sure how much of this is work induced or how much is the natural history of the condition in women of this age.’
2.9In his report dated 15 March 2012 (T26), Professor Stokes noted that the Applicant’s carpal tunnel symptoms on her left side were reportedly worse than on her right side even though the EMG showed that the Applicant’s carpal tunnel syndrome was mild on the left and significant on the right. Professor Stokes stated:
‘The question still remains as to whether this issue is related to her work and as she has been using computers at work, it is likely and possible that her work position has been responsible for the onset of carpal tunnel and I cannot exclude it as being responsible.’”
Applicant’s response
“2.46 The Applicant agrees with the facts stated in paragraph 2.7, 2.8 and 2.9 (T26) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
The pain in the left hand is increased as using the left hand with the incorrect mouse overcompensates for the carpel tunnel symptoms in the right hand leading to increased pain, symptoms and overuse.
Professor Stokes statements, ‘it is likely’ and ‘cannot exclude’, indicate that on the balance of probabilities the Applicant’s work is responsible for the onset of carpel tunnel.”
Respondent’s Statement
“2.11 The Applicant, in her statement supporting her reconsideration dated 5 April 2012 (T28), states:
(a)Due to changes at the ATO, in April 2011 she moved to her role as team leader, spending approximately 50% of her time of [sic] the computer.
(b)Due to the incorporation of an additional function of Siebel on the ATO computer system in September 2011, her time spent on the computer increased to 60% of her time at work.
(c)With the introduction of the new Siebel 8 version on the ATO computer system, her computer usage increased to approximately 70% of her daily work.” (footnote omitted)
Applicant’s response
“2.47 The Applicant agrees in part with the facts stated in paragraph 2.11 (T28) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
Percentages are estimates as noted in paragraph 2.42 of this statement.
2.48The Applicant agrees in part with the facts stated in paragraph 2.11(c) (T28) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
…
Siebel 8 was introduced in the week beginning 13 March 2012.”
Respondent’s Statement
“2.12 A workstation assessment report by Ms Aleisha Broom, Injury Management Consultant with The Recovre Group dated 27 April 2012 (Attachment 2) states that:
(a)The Applicant advised she had visited an orthopaedic surgeon in March 2012 who advised that surgery was indicated for her carpal tunnel syndrome.
(b)Two new ergonomic mice should be provided to the Applicant to reduce the amount of fine motor control movements through her fingers and arms and to reduce carpal tunnel syndrome symptoms.”
Applicant’s response
“2.49 The Applicant agrees with the facts stated in paragraph 2.12 (Att 7) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
The symptoms were reduced but, that does not mean that the carpel tunnel has been fixed.
The Recovre report also notes that the Applicant had previously used Zoomtext to help with the vision impairment, with the smaller monitor as not all the information on programs was available to view at one time and this lead to increased mousing and scrolling.
It is also noted that the small font causes severe eye fatigue and headaches.”
Respondent’s Statement
“2.15 Ms Broom provided an amended report dated 13 June 2012 (Attachment 3), the only amendment to her report dated 27 April 2012 being the insertion of the following paragraph under the heading ‘Recommendation’:
‘The Recovre Group recommends that if symptoms persist, [the Applicant] should seek medical attention from her General Practitioner. The Recovre Group recommends that treatment from a Hand Therapist may be beneficial for [the Applicant] if symptoms do not resolve. Hand Therapists specialise in the rehabilitation of the upper limb through specific evaluation, assessment and treating tools.’”
Applicant’s response
“2.50 The Applicant agrees with the facts stated in paragraph 2.15 of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
The Tax Office did not agree to hand therapy.”
Respondent’s Statement
“2.16 In his report dated 4 July 2012 (Attachment 4), Professor Stokes states that the Applicant’s symptoms are unchanged. Dr Stokes also reported:
‘She is making up her mind as to whether she will have the [carpal tunnel release] procedure done and has decided that [it] is appropriate to have the right side released…Certainly as I have stated before and I cannot exclude the fact that her work situation would have contributed to the development of this carpal tunnel syndrome.’”
Applicant’s response
“2.51 The Applicant agrees with the facts stated in paragraph 2.16 (Att 10) of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant:
The applicant was guided by the specialist advice.
The cost of the operation was an inhibiting factor which has caused the delay.”
Respondent’s Statement
“2.17 An email from Ms Broom to Ms Clark dated 4 July 2012 (Attachment 5) states that on return from her holiday on 2 July 2012 the Applicant advised ‘she still experiences symptoms through her wrists’ and had not heard whether hand therapy would be going ahead. Ms Broom said that the Applicant had received the equipment recommended in Ms Broom’s report and had set it up appropriately.”
Applicant’s response
“2.52 The Applicant agrees with the facts stated in paragraph 2.17 of the Respondent’s Statement of Facts, Issues and Contentions. Further facts that are relevant: Refer to paragraph 2.43.”
Respondent’s Statement
“ 2.18 Dr Watson’s (Neurologist) report dated 16 July 2012 (Attachment 6) states:
‘I must say I would exercise some caution with going ahead to operate on [the Applicant’s] hands, in particular she is keen to have the left hand operated on first which would seem contrary to EMG evidence. I am also concerned about the degree of tenderness there is in the wrist. I am told that her wrist x-rays don’t show excessive arthritis…I have suggested to [the Applicant] that we see how things go with the new work situation using a different mouse. [The Applicant] is going to wear splints at night. If the symptoms aren’t settling, I would counsel she gets a rheumatology opinion prior to considering surgery.’”
Applicant’s response
“2.53The Applicant disagrees with the facts stated in paragraph 2.18 of the Respondent’s Statements of Facts, Issues and Contentions. Further facts that are relevant:
The applicant was guided by the specialist advice, noting the carpel tunnel is severe in the right wrist but that the pain in the left wrist is greater due to overuse.”
The Medical Evidence
Dr Christopher Cook
Dr Cook, general practitioner, issued a Workers’ Compensation FIRST Medical Certificate, dated 27 January 2012, in respect of the applicant’s hands/wrists condition (T10). That certificate states (inter alia):
“ …
4. Details from Worker Date of injury/disease, etc: 01/11/2011
Onset of complaint:
Workplace location where incident occurred: Office
Worker’s description of the injury/disease, etc: Gradual onset bilateral wrist and hand pain, left worse than right. Symptoms throughout the day exacerbated by computer use, driving and lifting. Left hand weakness causing her drop things. Wakes at night with pins and needles in her hands.
Worker’s description of how it occurred: Gradual onset since end of November5. Medical Assessment
Clinical findings/diagnosis (include possible complications, effect of prior injury or medical condition): Global hand weakness left>right. Paraesthesias in median nerve distribution of left hand.
In my opinion the above diagnosis Does correlate with the injury/disease, etc. described to me by the worker.
…”
Dr Cook’s consultation notes regarding the applicant’s consultation on 27 January 2012 relevantly state:
“ 1) sore wrists
works in admin on computer all day
seen by OT at work – using 2 X mice
no new neck problems
weakness in hands L>R
has been dropping things
worse with computer use and drivingwakes with pins and needles in both hands
left hand
no obvious wasting
significant weakness in grip strength and opposition
tingling on sensory testing of median nerve distributionpositive Tinel’s sign
Phalen’s causes pain
right hand similar, less severe weakness however
referred for EMG to confirm diagnosis
wants to do as workers comp
2) …
Diagnosis:
Bilateral Carpal Tunnel Syndrome
Reasons for visit:
Bilateral Carpal Tunnel Syndrome
…” (original emphasis) (T17, p 74)
By letter dated 30 January 2012 Dr Cook referred the applicant to Professor Bryant Stokes, Neurosurgeon. (T11)
On 10 February 2012 Dr Cook issued a Workers’ Compensation PROGRESS Medical Certificate (T19) which includes the following progress report:
“3. Progress Report (clinical findings/diagnosis at this consultation and possible barriers to return to work)
New symptoms have developed, sharp pains in both wrists when using hands eg driving, brushing teeth, lifting a cup. Pain in flexor surface of wrist at distal radius and ulnar also dorsal 1st metacarpal.”
Dr Cook’s consultation notes regarding the applicant’s consultation on 10 February 2012 state as follows:
“ 1) Seeing Prof Stokes on 22nd Feb
some new sharp pain on dorsal thumbs (wrist to thumb) and anterior wrists around where radial and ulnar arteries are palpable
pains affecting everyday activities L>R
currently working
still waking with numbness – thinks is mostly affecting thumb and first 2 fingers but not entirely sure
requesting I make note of wrist splints on progress report so she can claim them
Note: 17th Oct notified employer of pain
I advised Helen that I have received a request for a medical report which she does not object to.
p – see again after appointment with Prof Stokes
Reason for visit:
Bilateral Carpal Tunnel Syndrome.
…” (T17, p 75)
By letter dated 9 February 2012 a delegate of the respondent requested Dr Cook to provide a medical report addressing the following questions:
“1. What date did Ms Tuck first consult you regarding the claimed condition? Please detail the history of Ms Tuck’s condition as reported to you.
2.Please provide copies of relevant clinical notes along with copies of any relevant reports and imaging, held on Ms Tuck’s patient medical file as this will further assist Comcare in the consideration of the compensation claim.
3.What is the specific diagnosis of the condition Ms Tuck currently suffers? Please provide a short description of the condition, including the clinical signs and symptoms to support your conclusion.
4.Please provide details of any relevant history, pre-existing or underlying condition suffered by Ms Tuck. And; if applicable; Do you consider the current condition suffered by Ms Tuck is an aggravation of the pre-existing or underlying condition?
5.What are the main factors which you consider have contributed to the condition. Pease include both employment and non-employment related factors. Please note: In answering this question, please provide specific details of incident/s and/or contributing factors.” (T16)
Dr Cook’s report, dated 9 [sic] February 2012, in response to the respondent’s request, states as follows:
“ I write in response for [sic] your request for a medical report dated 9th February 2012.
1)Date of first consult regarding claimed condition: 27/01/2012
- sore wrists with hand weakness, left hand worse than right
- started in October 2011 when she was seen by occupational therapist at work
- has been dropping things due to weakness
- sharp pain on using hands eg driving, computer use, holding a coffee cup
- wakes with pins and needles in her hands, unable to state where specifically in her hands she has the symptoms
- on second appointment, 10/02/2012, she also complained of sharp pains in her thumbs. Also sharp pains in anterior aspect of wrists around proximal wrist crease, proximal to flexor retinaculum
2)See attached clinical notes
3)Diagnosed with carpal tunnel syndrome pending investigation with EMG:
- pain in wrists and hands
- waking with pins and needles in her hands
- hand weakness
- significantly reduced grip strength and ability to oppose thumb and little fingers
-Tinel’s sign positive
-Phalen’s test causes pain
-symptoms bilateral but weakness less in right hand
-parasthesias in median nerve distribution on testing light touch
- Referred to Neurologist for EMG confirmation of diagnosis
- Ms Tuck later rang up and requested referral be changed as she would prefer to see Prof Bryant Stokes – appointment on Feb 22nd 2012
4)Pre-existing conditions (from notes)
- Sore neck, upper thoracic spine, wrists and shoulders following MVA in July 2001 – treated with anti-inflammatories and physiotherapy
- Right arm lateral epicondylitis (tennis elbow) January 2002
- Flare up of right Tennis elbow and new right shoulder subacromial bursitis June 2004 – managed with physio, shoulder brace and NSAIDs (Workers compensation claim)
Most of the current symptoms seem typical for carpal tunnel syndrome and I doubt her previous injuries play any role in it.
5)My knowledge of carpal tunnel syndrome (CTS) is rudimentary compared with a neurologist’s.
- I understand that the condition is common in middle aged women
- work related CTS is more common in those who do repetitive work with flexed wrists and those who perform rapid finger and wrist motion under load ie heavy manual work
- This may be an incidental condition due to Ms Tuck’s age and a specialist’s opinion would be more appropriate to establish the diagnosis and potential cause.” (original emphasis) (T17, pp 72–73)
Dr Peter Silbert
An EMG report of Dr Silbert, Neurologist, dated 24 February 2012, addressed to Professor Bryant Stokes who had referred the applicant with a referral diagnosis of “carpal tunnel syndrome”, concludes as follows:
“ …
Summary:
The right median sensory and motor distal latencies were prolonged with a reduced sensory amplitude. The left median sensory distal latency was prolonged. Other nerve conduction studies were normal. Needle examination was not performed.
Interpretation:
The EMG findings were those of:
1)an electrophysiologically moderately severe right median neuropathy at the wrist (carpal tunnel syndrome)
2)an electrophysiologically mild left median neuropathy at the wrist (carpal tunnel syndrome)
…” (T21)
Professor Bryant Stokes
A report of Professor Stokes, Clinical Professor of Neurosurgery, dated 28 February 2012, addressed to Dr Cook, states as follows:
“ Thank you very much for asking me to see Helen who I saw on the 22nd February 2012.
I note that I have not seen her since February 2011 and that her back condition appears to have settled.
She states that in September of last year she started to get pins and needles in both hands often waking her at night and in particular her symptoms were increased when she was using the ‘mouse’ at work on her computer. The left hand being worse than the right and she uses her left hand to do most of the mouse activities.
On clinical examination she certainly has got some early wasting of the abductor pollicis brevis muscles bilaterally and some minimal weakness, the left worse than the right.
As regards sensation, there weren’t any major sensory changes that I could detect.
I feel at this stage that she probably does have bilateral carpel tunnel and I am not sure how much of this is work induced or how much is the natural history of the condition in women of this age.
I thought I would arrange an EMG and also an X-ray of her wrists to look for degrees of osteoarthritis in the wrist joint.
…” (T23)
A report of Professor Stokes, dated 15 March 2012, addressed to Dr Cook, states as follows:
“ I saw Ms Tuck on the 14th March 2012.
The EMG has confirmed a significant carpel tunnel syndrome on the right and a similar but not so severe on the left. The one on the left is indeed mild. She states however that her symptoms are worse on the left than the right.
The X-rays of her wrist show that she does have some early degenerative changes of carpel joint arthritis but these are only relatively minimal.
The question still remains as to whether this issue is related to her work and as she has been using computers at work, it is likely and possible that her work position has been responsible for the onset of carpel tunnel and I cannot exclude it as being responsible.
I have advised her to consider having a carpel tunnel procedure performed on the right initially, which is the worse one electrically, and she is going to consider that.
I will see her again in a couple of weeks after she has further considered this and when Comcare has made a decision as to whether they will accept liability.” (T26)
A report of Professor Stokes, dated 4 July 2012, addressed to Dr Cook, states as follows:
“ I saw Helen Tuck on the 4th July 2012.
Her symptoms are still that of significant right carpel tunnel syndrome although there are symptoms on the left as well. She is making up her mind as to whether she will have the procedure done and has decided that is [sic] appropriate to have the right side released. She is debating as to whether she will have this done privately or in the public system.
Certainly as I have stated before and I cannot exclude the fact that her work situation would have contributed to the development of this carpel tunnel syndrome.” (part of Exhibit A1)
Mr Peter Watson
A report of Mr Watson, Neurosurgeon, dated 16 July 2012, addressed to Professor Stokes, states as follows:
“ Thanks for referring Helen Tuck to see me whose symptoms interestingly are predominantly right sided. She does get pain in both hands. The pains are in some aspects typical of carpel tunnel syndrome in that she wakes at night, has numbness and tingling in the appropriate fingers. During the day a lot of her pain radiates up into the wrist and in fact down the lateral aspects of the hands bilaterally and there also is quite a degree of tenderness and pain even within the tendons themselves.
There is some early wasting of abductor pollicis brevis. I note with interest that Peter Silbert’s tests showed moderately severe carpel tunnel on the right but only mild on the left.
I must say I would exercise some caution with going ahead to operate on Helen’s hands, in particular she is keen to have the left hand operated on first which would seem to be contrary to the EMG evidence. I am also concerned about the degree of tenderness there is in the wrist. I am told that her wrist X-rays don’t show excessive arthritis and I note that you had those done in February 2012.
I have suggested to Helen that we see how things go with the new work situation using a different mouse. She is going to wear splints at night. If the symptoms aren’t settling, I would counsel that she gets a rheumatology opinion prior to considering surgery. (Exhibit R8)
Mr Richard Vaughan
The respondent tendered in evidence a report of Mr Vaughan, Consultant Neurosurgeon, dated 11 August 2010, addressed to the Insurance Commission of Western Australia (Exhibit R2). Although that report is concerned with the condition of the applicant’s lower back and left leg following a motor vehicle accident on 20 February 2010, it includes the following references to the applicant’s hands:
“ …
FURTHER SYMPTOMS
Ms Tuck said recently and undergoing the swimming program she had developed some mild shoulder discomfort but with that some pain exacerbation in her hands, usually at night time, often wakening her and settling by ‘wriggling’ her hands around, but that has not disturbed her work. She is uncertain whether the swimming program has caused her symptoms or, as put, the possibility of a carpal tunnel state raised.
…
In answer to your specific questions:
…
2. Clinical findings and your diagnosis.
Ms Tuck presents with a recovering S1 radiculopathy on the left. That was due to an earlier discal extrusion occurring with a work incident (a slip during a fire drill).
Recently Ms Tuck has had some shoulder discomfort but particularly hand discomfort at night which may represent possibly a carpal tunnel state with or without minor shoulder impingement, but no specific signs found and her neck movements full and normal.
…”
The Relevant Legislation
Section 14(1) of the SRC Act provides:
“ 14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
The SRC Act also relevantly provides as follows:
“ 4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease has the meaning given by section 5B.
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
…”
“ 5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
…
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material”.
The Issue
It is common ground that the applicant suffers from bilateral carpal tunnel syndrome. On the basis of the medical evidence before it, the Tribunal so finds. The Tribunal also finds that that condition is an “ailment”, and has resulted in “impairment”, as defined in s 4(1) of the SRC Act.
The issue for the Tribunal’s determination is whether the applicant’s bilateral carpal tunnel syndrome is an “injury” (as defined in s 5A(1) of the SRC Act) within the meaning of s 14(1) of the SRC Act.
Analysis
The cases presented by the parties centred on the question whether or not the applicant’s bilateral carpal tunnel syndrome is a “disease” as defined in s 5B(1) of the SRC Act.
In order to constitute a “disease”, as defined in s 5B(1) of the SRC Act, the applicant’s bilateral carpal tunnel syndrome must have been “contributed to, to a significant degree, by” the applicant’s employment by the ATO. The phrase “significant degree” in s 5B(1) is defined, in s 5B(3), to mean “a degree that is substantially more than material”.
When did the applicant sustain bilateral carpal tunnel syndrome?
The applicant contends that her bilateral carpal tunnel syndrome developed “over a considerable period of time whilst working in the Tax Office undertaking constant computer based work”. She submits that, although she had suffered wrist pain from approximately October 2009, a “major change” in her work duties in October 2011 “triggered an increase in pain” in her wrists. In this connection the Tribunal notes that the applicant lodged an Incident Report Form on 15 April 2011 (T7) referring to “pains in [her] wrist and arms” as a result of “keying and mousing” and a further Incident Report Form on 17 October 2011 (T8) asserting that her injury (unspecified) was caused by “keying and using mouse”. The Tribunal also notes that on 21 October 2011 the applicant was referred to a rehabilitation consultant, Recovre, for an “initial needs assessment” in relation to “hand and forearm pain”. In a Review Initial Needs Assessment Report, dated 7 December 2011, by Ms M Blackwell, Injury Management Consultant, “injury background” and “current medical status” are set out as follows:
“ Injury Background:
Ms Tuck advised that she has a history of a lower back and shoulder injuries. She reported that she sustained a herniation of L4/5 2 years ago, underwent corrective surgery and had approximately 2 months off work as a result. She advised that she is currently able to manage her lower back injury effectively and exercises daily to maintain strength in her lower back.
Ms Tuck also advised that she sustained bursitis in her right and left shoulders ‘several years ago’ which she attributes to repetitive and long term computer use. She reported that after a period of physiotherapy, and implementation of a Logitech Marble Mouse, her symptoms are currently manageable and do not affect her whilst at work.
Ms Tuck reported that she suffers from Nystagmus. She advised this has been a long standing visual disturbance, and she is able to accommodate for this with glasses, focussing techniques, using a large font keyboard and high screen resolution.
Ms Tuck advised that she has been experiencing pain and weakness in both her left and right hands for approximately 2 months. She reported she has not experienced such symptoms prior to this.
Current Medical Status:
Ms Tuck has not seen a General Practitioner related to the pain and weakness in her hands and forearms. She advised she has not missed any days of work because of these symptoms.
Ms Tuck reported the following current symptoms:
· Pins and needles in her hands when she sleeps on her side;
· Pain at her wrist during supination (wrist rotation);
· Pain whilst driving, particularly whilst gripping steering wheel;
· Weakness when gripping objects (left weaker than right). Ms Tuck advised she often drops items due to weakness;
Ms Tuck reported she has recently returned from 4 weeks leave. She advised that there has been no change in her symptoms during that time, suggesting that the aggravating factors may not be soley [sic] related to her workstation set up.
Ms Tuck advised that her symptoms limit her performance at work when:
· Performing tasks such as reloading paper in the photocopier;
· Using her mouse;
· Carrying files.
Ms Tuck advised that she does not suffer from arthritis, and is not taking any medications at the moment for any health conditions.” (T9, pp 34–35)
Having regard to the evidence before the Tribunal, the date on which the applicant sustained bilateral carpal tunnel syndrome is uncertain. Although the Tribunal accepts that that ailment was one of “gradual development” rather than “sudden onset” (see the definition of “ailment” in s 4(1) of the SRC Act), the evidence before the Tribunal does not specify a precise, or even an approximate, date on which the necessary features and symptoms of bilateral carpal tunnel syndrome were first present in the applicant’s case. Certainly, the applicant was suffering from bilateral carpal tunnel syndrome on 24 February 2012, as confirmed by the EMG test conducted by Dr Silbert on that date (see paragraph 16 above). As regards the applicant’s sustaining bilateral carpal tunnel syndrome prior to 24 February 2012, although the applicant said that she was suffering an increase in wrist pain from October 2011, she did not consult a medical practitioner regarding those symptoms until 27 January 2012 when Dr Cook made a provisional diagnosis of bilateral carpal tunnel syndrome, pending confirmation by an EMG investigation.
Having regard to the evidence before the Tribunal, the earliest date on which, in the Tribunal’s opinion, it can safely be satisfied, on the balance of probabilities, that the applicant was suffering bilateral carpal tunnel syndrome is 27 January 2012 (being the date of Dr Cook’s provisional diagnosis, which was subsequently confirmed by an EMG test). Accordingly, the Tribunal finds that the applicant sustained bilateral carpal tunnel syndrome on 27 January 2012.
Is the applicant’s bilateral carpal tunnel syndrome a “disease” as defined in s 5B(1) of the SRC Act?
Pursuant to s 5B(1) of the SRC Act the applicant’s bilateral carpal tunnel syndrome will be a “disease” only if it has been “contributed to, to a significant degree, by” her employment by the ATO. The degree to which her bilateral carpal tunnel syndrome must have been contributed to by her employment by the ATO is “a degree that is substantially more than material”: see s 5B(3) of the SRC Act.
Although the applicant, in her own evidence, asserted that her bilateral carpal tunnel syndrome had been caused or, at least, significantly contributed to, by her undertaking “constant computer based work” over “a considerable period of time” (especially in the period from October 2009) in her employment by the ATO, that matter, in the Tribunal’s opinion, is to be determined primarily on the basis of the medical evidence.
The medical evidence before the Tribunal in relation to the causation of the applicant’s bilateral carpal tunnel syndrome may be summarised as follows:
Dr Cook
·although Dr Cook issued a Workers’ Compensation FIRST Medical certificate, dated 27 January 2012, in respect of the applicant’s hands/wrists condition, in his report of 9 [sic] February 2012, in answer to the question “What are the main factors which you consider have contributed to the condition?”, he stated:
“5) My knowledge of carpal tunnel syndrome (CTS) is rudimentary compared with a neurologist’s.
- I understand that the condition is common in middle aged women
-work related CTS is more common in those who do repetitive work with flexed wrists and those who perform rapid finger and wrist motion under load ie heavy manual work
-This may be an incidental condition due to Ms Tuck’s age and a specialist’s opinion would be more appropriate to establish the diagnosis and potential cause.”;
Professor Stokes
·in his report of 28 February 2012 Professor Stokes relevantly stated:
“ I feel at this stage that she probably does have bilateral carpal tunnel and I am not sure how much of this is work induced or how much is the natural history of the condition in women of this age.”;
·in his report of 15 March 2012 Professor Stokes relevantly stated:
“ The question still remains as to whether this issue is related to her work and as she has been using computers at work, it is likely and possible that her work position has been responsible for the onset of carpal tunnel and I cannot exclude it as being responsible.”;
·in his report of 4 July 2012 Professor Stokes relevantly stated:
“ … I cannot exclude the fact that her work situation would have contributed to the development of this carpal tunnel syndrome.”.
In the Tribunal’s opinion, Professor Stokes’ statements, in his abovementioned reports, regarding the causation of the applicant’s bilateral carpal tunnel syndrome are somewhat equivocal. Unfortunately, Professor Stokes was not called as a witness in this proceeding and, accordingly, the Tribunal did not have the benefit of hearing oral evidence from him in which his precise opinion regarding the causation of the applicant’s bilateral carpal tunnel syndrome may have been stated and explained.
In the Tribunal’s opinion, contrary to the applicant’s contention, the evidence before it is not sufficient to satisfy it, on the balance of probabilities, that the applicant’s bilateral carpal tunnel syndrome was “contributed to, to a significant degree” (as defined in s 5B(3)of the SRC Act), within the meaning of s 5B(1) of the SRC Act, by her employment by the ATO.
In the Tribunal’s opinion, the relevant abovementioned, opinions expressed by Professor Stokes in his reports, in substance, go no further than to opine that the applicant’s employment may have been a causal factor in, or may have contributed to, her sustaining bilateral carpal tunnel syndrome. In the Tribunal’s opinion, Professor Stokes’ stated opinions fall substantially short of opining that it is likely – that is, probable – that the applicant’s employment contributed to a “significant degree” (as defined in s 5B(3) of the SRC Act) to her sustaining bilateral carpal tunnel syndrome.
As regards Dr Cook’s response to question 5 in his abovementioned report, in the Tribunal’s opinion that response does not constitute the expression of an opinion regarding the extent (if any) to which the applicant’s employment by the ATO has contributed to her sustaining bilateral carpal tunnel syndrome.
Having regard to the whole of the evidence before it, including the evidence regarding the duration of the applicant’s employment by the ATO and her evidence regarding her computer-based work duties, the Tribunal is not satisfied that the applicant’s bilateral carpal tunnel syndrome was “contributed to, to a significant degree by” (within the meaning of s 5B(1) of the SRC Act) her employment by the ATO.
Accordingly, the Tribunal is not satisfied that the applicant’s bilateral carpal tunnel syndrome is a “disease” as defined in s 5B(1) of the SRC Act.
Conclusion
The Tribunal notes that the applicant – appropriately, in the Tribunal’s opinion – did not contend that her bilateral carpal tunnel syndrome is “an injury (other than a disease)”, within the meaning of s 5A(1)(b) of the SRC Act.
The Tribunal concludes, therefore, that the applicant’s bilateral carpal tunnel syndrome is not an “injury” (as defined in s 5A(1) of the SRC Act) within the meaning of s 14(1) of the SRC Act and that, accordingly, the respondent is not liable, under s 14(1) of the SRC Act, to pay compensation to the applicant in respect of her bilateral carpal tunnel syndrome.
Decision
For the above reasons the decision under review is affirmed.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop. ........................................................................
Administrative Assistant
Dated 10 April 2013
Date of hearing 28 March 2013 Representative of the Applicant In person (unrespresented) Counsel for the Respondent Ms G Walker Solicitors for the Respondent Sparke Helmore
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