Jaudzems and Comcare (Compensation)

[2024] AATA 32

Jaudzems and Comcare (Compensation) [2024] AATA 32 (17 January 2024)

Division:GENERAL DIVISION

File Number(s):      2022/6211

Re:Karina Jaudzems

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member A Ward

Date:17 January 2024

Place:Adelaide

The decision under review is set aside and in substitution it is decided that the Applicant’s claim satisfies the criteria under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

Subject to any application on the issue of costs to be made within 14 days of the date of this order, the Respondent is to pay the Applicant’s costs of this application to be determined by the Tribunal if not agreed.

...................[Sgnd].................................

Member A Ward

CATCHWORDS

WORKERS COMPENSATION – Commonwealth employee - pre-existing condition – significant contribution from employment – arm/wrist injury – decision under review set aside and substituted.

PROCEDURE – very late application to adjourn refused – no prejudice demonstrated – right of parties for matter to proceed in timely fashion – Tribunal and parties’ resources.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v Reardon [2015] FCA 1166; (2015) 148 ALD 356

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Kelman and Prosegur Australia Pty Ltd [2014] AATA 675

Tippett v Australian Postal Corporation (1998) FCA 335

REASONS FOR DECISION

Member A Ward

17 January 2024

1. This is a claim for injuries Ms Karina Jaudzems (“the Applicant”) says she sustained in the course of her employment with the Bureau of Statistics (“BOS”) arising on or about 9 March 2021. The injuries claimed are to the Applicant’s right arm wrist and hand. She is right-handed. 

2. By decision dated 31 May 2022, Comcare (“the Respondent”) rejected the Applicant’s workers’ compensation claim. That decision was reaffirmed on 25 July 2022 and is the subject of these proceedings. The terms synovitis and tenosynovitis were used by the Respondent as a descriptor.

3. For reasons set out below, the Applicant has been successful in her claim to overturn the decision of the Respondent. She suffers from tendonitis which is an ailment pursuant to s 5B(1)(a) of the Safety, Rehabilitation and Compensation Act1988 (“the Act") which has been (and remains) contributed to by a significant degree by her work duties.

   RELEVANT FACTS

4. The Applicant has a developmental condition in both of her wrists, being Madelung deformity, and there is agreement that developmental condition was not caused by the Applicant’s employment. 

5. The Applicant has suffered wrist symptoms. These have been variously described, but the location in her right arm has been consistent and has been described for the Tribunal in a diagram as running from the bottom of her right thumb and right index finger and up across her wrist to her right elbow.[1] She had a plaster on her arm whilst giving evidence in these proceedings. Right wrist/arm pain is a fair lay description. Chronic tendonitis was used by Dr Wallwork and Dr Hwang.

   [1] Exhibit 4, Photograph of the Applicant’s Arm.

6. The case presented by the Applicant is that she has suffered an aggravation of her condition and this aggravation was caused by her specific work duties. These consist of prolonged sustained work on a computer, either on the keyboard or using a mouse, and cannot be avoided in her usual duties at the BOS, although in the past (and this condition has affected her in the past) she has worked at different duties with much less keyboard and mouse use and concordantly – much less pain.

7. These prior symptoms had affected her from the time she commenced her employment at the BOS in 2006 and which gave rise to a claim in that year which was accepted. She had pain in her wrist when using a mouse.[2]

   [2] Exhibit 2, Supplementary T-Documents, page 74.

8. After treatment and modification of duties, the Applicant returned to her “normal” duties. She had a further exacerbation of symptoms and another claim on 10 November 2008. Frequent use of the keyboard and mouse where noted. These claims were accepted.

9. The Applicant’s evidence, which was not contradicted, was that she did not have symptoms with her wrists prior to her employment at the BOS.

10. By way of further background, the Applicant’s symptoms were bilateral. She had surgery on the left arm in 2011 which greatly improved her condition. Her right wrist had been problematic. Her treating surgeon was Dr Wallwork.

11. The Applicant also reported from time-to-time other problems with her wrist.  However, she has said with regard to her previous compensation claims, that these claims caused her anxiety with a view on her part that they actually had an adverse effect on the way she was viewed by her employer.

12. Thus, there was a reluctance on her part to complain. However, the employment records show adjustments to her duties made by her employer from time to time when she had an increase in her symptoms, but not necessarily linked to a claim. This shows a level of support by her direct employers. However, one can understand an employee might feel reluctant to be seen as a complaint-maker. It is accepted that she continued to have problems following her earlier claims, but was reluctant to make too much of them, and her employer provided some support.

13. The Tribunal accepts that she had these problems when working prior to the subject claim, but she could manage these to the extent that they were not incapacitating.

    SUBJECT CLAIM

14. In early 2021, during a period of one month off work, the Applicant said she had a very significant reduction in her right arm symptoms.  When she returned to work following that break in March 2021, there was a sharp increase in her symptoms. She reported that to work and sought physiotherapy treatment on the day of the report.  She was referred to an orthopaedic surgeon for review. 

15. The Applicant had previously been treated by Dr Wallwork, an orthopaedic surgeon who operated on her left arm for an earlier injury. That successfully addressed her problems in that arm at that time. Following the return from holiday, she had an operation on her right arm, but it was by no means as successful as the earlier one on her left arm.  The applicant required time off work as a result of her right arm pain and a modification of her ongoing hours.

16. At the time of the hearing, the Applicant said she continues to have symptoms in her wrist.  They continue to arise as a consequence of her working on a computer and at the time of the hearing, she was only working 4 days per week (taking Wednesday off to recuperate) and working reduced hours. Thus she has a significant ongoing condition.

17. Her description of the symptoms was that she had pain that increased during the course of the day and when she came home from work the pain would impact on her ability to undertake her usual domestic chores such as cooking and cleaning. She said this was cumulative and despite the rest day on Wednesday, her pain would be very bad by the end of the week.  Over the weekend she would rest so that the pain level would reduce, allowing her to attend work and undertake her duties on the Monday.  But then the cycle would start again. 

18. Such was her condition that in preparation for the hearing, the Applicant took a week off work so as to reduce the anticipated aggravation. 

19. The Applicant gave evidence in a forthright manner. Her evidence was essentially consistent with the histories she had given to medical practitioners. There was no attack on her credit or account of events in the main.  For the purpose of this decision, if there was such an attack, after hearing her evidence and assessing her, the Tribunal accepts the Applicant as a credible and honest witness who did not embellish her case. Further, she is a person who has tried her best to cope with her employment without making a fuss - but has found that more difficult as a result of the pain she has suffered as a consequence of her work.

20. Her treating orthopaedic surgeon Dr Wallwork gave evidence as to her condition.  His view was that the tendons and ligaments in her wrists were affected as a consequence of her congenital deformity because they had more work to do than in somebody without such a condition. He described and demonstrated to the Tribunal the type of action that would cause aggravation to the tendons and wrist and arm structures.  If the reader can imagine a person sitting at a desk with their upper arms running generally parallel to their chest and their lower arms held out at a 90-degree angle in front of them and then the hands bent upwards, that position would exacerbate the support structures of her wrists (and for our purposes, the right, given the improvement to the left following earlier surgery).  That is the position a person uses to operate a keyboard and a mouse.  In this instance, the Applicant is right-handed and that, despite surgery, continues to be the problem. 

21. The Respondent’s case was essentially that the Applicant had these symptoms in any event. They were ever present and if they were aggravated by work, they were also aggravated by home duties such as mopping or lifting a kettle or chopping food. 

22. The Respondent’s case, based on evidence of Dr Pope, was that the problems arose as a consequence of the congenital deformity, which was not caused by work. Dr Pope found that the Applicants “bilateral wrist pain has not been contributed to a significant degree by [her] employment.”[3] 

    [3] Report of Dr Pope, dated 17 April 2023, page 4.

23. That is the view Dr Pope expressed but on careful consideration of all of the evidence it is difficult to accept if one accepts the Applicant’s evidence of the increase in pain during work, when she is using her hands in the manner described by the treating orthopaedic surgeon - in a manner which would aggravate her condition.  The Applicant’s evidence was that her symptoms would worsen during the course of the day and then because they had worsened, they would then affect her when she was at home, not because she was undertaking chores at home which aggravated the symptoms, but the increase in pain over the day impacted on her ability to carry out those chores.

24. That is evident from the fact that she would recover to a degree when she was resting at home over the weekend so that she would then have the ability to return to work on Monday and start the cycle over again. 

25. That is also evident from the fact that when she had the month off work (which was a rarity for her) there was a very significant improvement in her condition. Whether that was improvement to the point of being pain-free is immaterial in the Tribunal’s view. The substantial improvement means that activities that she undertook at home (and there is no evidence she was bedridden for the month off, nor attended upon by servants) did not cause her symptoms to remain at the same level nor increase in severity.

26. There are many cases regarding aggravation and very helpful guidance from various Tribunals and Courts.  In this regard, the Tribunal was directed to the cases of Federal Broom Co Pty Ltd v Semlitch,[4] and Tippett v Australian Postal Corporation,[5] and other authorities for the guidance provided in them to the Tribunal in such cases.

    [4] (1964) 110 CLR 626 per Kitto J at 634.

    [5] (1998) FCA 335 and the appropriate observations of Finkelstein J therein.

27. In the matter of Kelman and Prosegur Australia Pty Ltd, to which the Tribunal was referred, the factual findings of the then Tribunal were that Applicant’s symptoms were painful at work but equally painful at home and there was no real discernible difference.[6] But that is not the case here, where the Applicant’s time off work was necessary for her to recover to the point that she could turn up again the next Monday. In this case there is a palpable distinction between her work problems and issues she would have with her home or recreational activities. The work aggravations contributed to her symptoms to a significant degree. There is no compellable evidence that her out of work activities did so to any comparable level. Whilst she might have noted an increase in problems on some domestic activities it did not account for the significant problems the Tribunal accepts arose from her specific and unavoidable work duties.

    [6] [2014] AATA 675 at [27] – and this was on the Applicant’s own admission in that case.

28. It is the finding of the Tribunal in this case, that there was a marked difference between the Applicant’s symptoms at work and those when she is at home or on holiday. The employment therefore contributed to a significant degree, and on the facts of this case the contribution was significantly more than material.[7] There is clearly impairment in her functioning flowing on from the aggravation.[8]

    [7]  Noting discussion on these issues in Comcare v Reardon (2015) 148 ALD 356.

    [8]  As was not found to be the case in Kelman and Prosegur Australia Pty Ltd [2014] AATA 675 at [35].

29. The Respondent’s case also focused on there being a baseline of symptoms that continually affected her.  There is no reliable evidence to support that concept, namely, that she had a high level of symptoms at rest which were aggravated both at work on her computer and at home doing domestic duties.

30. When the Applicant saw a physiotherapist on the day that she made her complaint to her employer (remembering she was reluctant to take such a course) the notes made by the physiotherapist refer to her pain being 9 out of 10 at work and 6 out of 10 at rest.  The evidence does not support that that is something she said herself, but at best may have been something the physiotherapist understood to be the case. 

31. This is not regarded as reliable evidence strong enough to defeat her case on the basis that her baseline for pain outside of work was 6 out of 10.  That is not consistent with the constant history she gave of improvement in her pain levels over the month she had off work.  Nor is it consistent with the evidence of the increase in pain as a consequence of work, the need to have a day off to settle her symptoms to a degree, but then the pain compounding with a return to work on the Thursday and Friday and at its worst on the Friday evening. 

32. This interpretation is also not consistent with the Applicant then having to modify her activities over the weekend so as to allow her to return to work on Monday.  That description of the cycle of her symptoms worse at work and recovering at rest, which has not been challenged, is accepted by the Tribunal as an accurate description of the Applicant’s situation.

33. In a letter from the physiotherapist Ms Gorringe to the orthopaedic surgeon Dr Policinski dated 2 June 2021,[9] there was the suggestion that with the treatment the Applicant undertook from the incident up to that time, that there was complete improvement in symptoms to the point of being pain-free.  That again is a letter from the physiotherapist (who was not called) and is inconsistent with the fact that the Applicant attended at Dr Policinski’s rooms complaining of pain the day after that letter was written by the physiotherapist.[10]  If she had been symptom-free, there would have been no need for the referral, and she would not have complained of her ongoing symptoms to the orthopaedic surgeon.  The finding of the Tribunal is that the views expressed in Ms Gorringe’s letter were and are incorrect, or at best too optimistic.

    [9]  Exhibit 1, T-Documents, T6, Letter of Ms Gorringe, page 30.

    [10] Exhibit 1, T-Documents, T7, Letter of Dr Policinski, dated 3 June 2021.

34. A suggestion of the high pain “baseline” proffered by the Respondent is disputed by the Applicant. It is not supported by other evidence.  If it was to be the lynch pin of the Respondent’s decision, one would expect there would be much more reliable evidence of that to support a decision to reject her case on that basis.

35. The work contribution to the condition was significant. Her computer use caused the pain response. The contribution from work was substantially more than material, and this was demonstrated by the improvement on holiday and the onset of severe symptoms on her return to work. The substantial contribution continues to be demonstrated by the worsening of symptoms over the working week (despite the Wednesday taken off) and her need to recuperate over the weekend just to be able to start the process again on Monday.

36. In reaching this view the tribunal has considered Comcare v Reardon,[11] and the cases considered by Mortimer J in it.

    [11] [2015] FCA 1166.

    PROCEDURAL ISSUE ON EVIDENCE

37. On the morning of the commencement of the hearing, the Respondent wanted to refer to the fact that a further report had been obtained (in answer to the Respondent’s expert Dr Pope’s second report) from the treating orthopaedic surgeon, Dr Wallwork. In addition, the Applicant had served further opening submissions.

38. These are matters (follow up evidence and submissions) that were canvassed in a directions hearing approximately one month prior to the commencement of the hearing proper.  As a matter of fairness, the notes indicate that the particular directions hearing coincided with the shutdown of the Optus system which meant that the Respondent was without communication and could not attend at the directions hearing. However, subsequent email communications between the Registry, the Respondent’s solicitors and the Applicant’s solicitors indicate that the Respondent was aware of a further report being obtained and that further opening submissions were going to be made. 

39. No application was made by the Respondent to query or block that approach prior to the hearing.  In addition, the Tribunal was advised that the Respondent’s legal advisors were able to confer with their specialist Dr Pope on the matters raised in the further report of Dr Wallwork. 

40. When the matter was first brought to the Tribunal’s attention at the commencement of the hearing proper, it was on the basis that there would be no application to adjourn the hearing to remedy whatever prejudice might have arisen from those steps being taken (despite the opportunity to intervene at a time earlier than the commencement of the hearing).  The Tribunal was informed that the point was raised with some reference to a costs issue that might be taken at a later point. The nature of the  possible point  was by no means clear.

41. An adjournment was then provided for the Respondent to obtain further instructions. Following this, the Respondent then made an application for the whole hearing to be adjourned so that a further report could be obtained from Dr Pope.  That was inconsistent with the fact that Dr Pope had been consulted on the further report of Dr Wallwork and so presumably was able to provide his views upon it. There was no suggestion otherwise, nor that Dr Pope needed more time to finalise his views. It was also inconsistent with there being no need for an adjournment of the whole matter approximately half an hour earlier when this was first raised. 

42. It is a fundamental right that these matters are dealt with in a timely fashion with a view to the appropriate use of the Tribunal’s and parties’ resources. However, procedural fairness must always be the touchstone.

43. The Respondent could not point to any prejudice in association with these applications.  If Dr Pope’s opinion had changed, that should have been brought to the attention of the Tribunal when his opinion changed – which would have been disclosed to the Respondent’s advisors at the prehearing proofing. However, in his evidence, it was clear his opinion had not changed as a consequence of anything he saw in Dr Wallwork’s last report nor as a result of any issue he was able to discuss with the Respondent’s legal advisors.

44. The Respondent made forensic decisions not to bring an application in a more timely fashion. Nor did they obtain a note from Dr Pope following the proofing. Rather, they waited until the commencement of the hearing to raise these issues.

1. In any event, the decision of this Tribunal is not fundamentally or intrinsically based on any material obtained shortly prior to the hearing.  There was no last-minute surprise evidence that changed the whole scenario. The clear picture of improvement of symptoms outside of the work environment during the month of the holiday, and then the return of symptoms at a much higher level after returning to work (so that her working hours had to be modified) were the important facts here.  That had been the case from the very outset. 

2. Therefore, no prejudice was demonstrated on the part of the Respondent that would have required either a further report or an adjournment of the whole case to facilitate it.

3. In addition, whilst the Applicant’s situation has fluctuated in the past between her previous claims, it has not done really done so in any material way since this incident occurred.[12] She has been significantly impacted upon - and unremittingly so - due to the fact that she cannot escape computer work and the aggravation it causes her in her employment.

   [12] Noting the issue with the improvement mentioned in the physiotherapist report discussed above being an aberration.

4. As a matter of fact, in this case, the Applicant’s employment contributed to her condition to a significant degree.

   DECISION

5. The decision under review is set aside and in substitution it is decided that the Applicant’s claim satisfies the criteria under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

6. Subject to any application on the issue of costs to be made within 14 days of the date of this order, the Respondent is to pay the Applicant’s costs of this application to be determined by the Tribunal if not agreed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for the decision herein of Member A Ward

.............................[sgnd]..................................

Associate

Date of Decision:	17 January 2024
Date of Hearing:	6 & 7 December 2023
Solicitor for the Applicant:	Alexandra Harris Tindall Gask Bentley
Solicitor for the Respondent:	Nathan O’Reilly Minter Ellison