JENNIFER DE COSTA and COMCARE

[2009] AATA 863

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 863

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1527

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER DE COSTA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr M Denovan, Member, and Dr M Miller, Member

Date9 November 2009

PlaceCanberra

Decision  The Tribunal affirms the decision under review.

.................[Sgd].............................

Member

CATCHWORDS

COMPENSATION – applicant claimed compensation for occupational overuse injury – whether conditions are connected to employment – consideration of medical evidence – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 14

Douglas v Telstra Corporation Limited [2004] AATA 256

Mellor v Australian Postal Corporation [2009] FCA 504

REASONS FOR DECISION

9 November 2009 Dr M Denovan, Member and Dr M Miller, Member       

1.      Jennifer De Costa (“the applicant”) joined the public service in 1997. On 18 December 2006, she claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for an occupational overuse injury affecting the right shoulder/arm and neck, which was first noticed in 2003.  Her claim was refused and is the subject of this appeal before the Administrative Appeals Tribunal (“the Tribunal”).

2.      In order to resolve the dispute in this case, the Tribunal must:

·     Firstly, attempt to isolate the nature and extent of the applicant’s ailment.  It is not, strictly speaking, necessary to settle on a precise diagnosis of her condition: see, for example, Douglas and Telstra Corporation Ltd [2004] AATA 256 at [40]. However, we must have some idea of what that condition entails; and

·     Secondly, determine whether the applicant’s aliment has been caused or aggravated by her employment.

3.      After having careful regard to evidence, we have decided the applicant’s current back, neck, shoulder and arm pain is not connected with her employment.  We have therefore decided to affirm the decision under review and our reasons are explained below.

THE FACTUAL BACKGROUND

4.      The applicant commenced work for the public service, on a part-time basis, in April 1997.  She remained part-time, moving through different positions until February 2006 when she commenced full-time work.

5.      A Workstation Assessment Checklist dated 5 June 2003 records the applicant as having right elbow, neck and shoulder soreness for several months, but increasing in the last two weeks.  It was recorded as “old work-related”[1].

[1] T4.

6.      The applicant received acupuncture treatment from Dr Vinh Duc Lieu between the period of 18 June 2003 and 24 July 2003.  Dr Lieu reported the treatment as being for “right elbow tenosynovitis and right shoulder-arm stenosis”[2].

[2] T22d.

7.      A Workstation Assessment Report dated 22 June 2005 recorded the applicant as having reported a history of right neck, shoulder and arm pain with the original onset occurring approximately two years ago.  She also reported pain in her left elbow, difficulty with gripping and weakness in her left arm (which had occurred over the last four to six months), and occasional increased tightness in her right neck region.  The applicant stated that she commenced her current job about one month ago.  She reported that no difficulty was experienced with keyboard work.  The applicant stated that her job required intense mouse use more than 50% of the time[3].

[3] T7a.

8.      A Workstation Assessment Summary Report, dated 13 March 2006, recorded the applicant as having pain in the neck and shoulders, pain in both arms (left more so than right) and tenderness around the lateral epicondyl and extensor bulk of the forearm.  She reported 60:40 keyboard to mouse ratio.

9.      In a letter dated 7 August 2006, Margaret O’Donovan, physiotherapist, stated that the applicant requires a standing workstation to assist with rehabilitation of her right shoulder pain.

10.     The applicant consulted her general practitioner, Dr Susan Wareham, on 18 August 2006.  Dr Wareham’s clinical notes indicate that the applicant consulted a physiotherapist for pain in right shoulder and neck, which had been present for ten years, and perhaps longer.  It was noted that the applicant performs keyboarding all day, that the pain was worse when the applicant had time off with an operation, and that the pain never goes away.  It was noted the applicant had no discussions of this problem with the doctor previously[4].

[4] Exhibit 10.

11.     In a Comcare Medical Certificate, dated 18 August 2006, Dr Wareham stated the applicant was injured “over years”, and that she was suffering from occupational overuse.  Right shoulder bursitis was diagnosed as a consequence of computer overuse.

12.     On 18 December 2006, the applicant lodged a claim for compensation. The claim form outlines that she first noticed her injury in approximately 2003; it subsided and then flared up again in 2005[5].

[5] T7f.

13. A delegate for Comcare determined on 30 April 2007 that the applicant had no entitlement under s14 of the Act. The claims officer was satisfied that the applicant’s employment was no more than a mere contributing factor in the development of her condition.

14.     Associate Professor Milton Cohen, Rheumatologist, examined the applicant on 26 July 2007 at the request of Dr Wareham.  Dr Cohen diagnosed “right-sided rotator cuff dysfunction and referred pain from the hypomobile cervical and upper thoracic spine into the right pectoral girdle and upper limb”.  He noted that these problems occurred “in the context of some remote dissatisfaction at work punctuated by changes in mood”.

15.     On 8 October 2007, the applicant requested reconsideration of the determination.  The reviewable decision dated 8 February 2008 affirmed the determination of 30 April 2007.  The applicant applied to this Tribunal for review on 10 April 2008.

16.     Associate Professor Les Barnsley, Consultant Rheumatologist, examined the applicant on 23 July 2008.  Associate Professor Barnsley found no evidence of any specific musculoskeletal disorder.  He opined that the applicant might have had a frozen shoulder or capsulitis of the right shoulder in 2006, leading into 2007.

APPLICANT’S POSITION AND EVIDENCE

17.     The applicant told the Tribunal that she suffered from right shoulder, arm and neck pain since 2003, when she was working long hours.  The applicant experienced pain even when she stopped work, and it intensified when she returned.  She claims to have first experienced neck and right arm and shoulder pain in mid-2003.  The applicant asserted that the pain occurred as a result of long hours of computer-based work.  The applicant did not report her problem at that time because she believed that she was treated differently by her then supervisor, who, in the applicant’s opinion, did not like part-time employees.  The applicant did not wish to be denied opportunities such as training and promotion.

18.     The applicant told the Tribunal that between 2004 and 2005 the pain abated because she was not required to do as much keyboard work.

19.     In May 2005, the applicant said that she was under increased pressure to enter information (regarding grant applications) into a database.  She was one of only two persons performing this task, as other staff members were on leave.  The applicant experienced a resurgence of pain in her neck, shoulder and arm.  The pain was not intense but was still present when she stopped keyboarding.

20.     The applicant told the Tribunal that in February 2006 she was moved to a different department.  As a result, she experienced less pain because less keyboarding work was required.  When the applicant was moved to a new position in April 2006, her pain intensified as the position involved more keyboarding work.  In August 2006, she sought treatment from Ms O’Donovan, physiotherapist.  That treatment made her pain worse.

21.     On cross-examination, the applicant was asked about her previous history of depression.  She believed the cause of the depression was a combination of bullying in the workplace and pain she experienced in her neck shoulder and arm.

22.     The applicant described her pain in 2003 as “excruciating”.  She said the pain prevented her from sleeping (as the pain was present the whole time), and she could not brush her hair, or clean her teeth with her right limb.  The applicant explained that she could still drive a motor vehicle and write, as there was no pain in her wrist.  When questioned, the applicant said that when she described her pain to be excruciating, she meant that it was “almost unbearable”.

23.     The applicant said that she did not mention this pain to Dr Wareham, general practitioner, despite visiting her several times in 2003, as she preferred to consult another doctor for treatment, acupuncturist Dr Lieu.  However, acupuncture did not relieve her pain.  The applicant claims she did not consult a general practitioner for pain relief because she thought she may be put off work.  The applicant said Dr Wareham was a very ethical doctor, who would not have been able to prevent her employer from finding out about her problem if she sought treatment.  The applicant preferred to treat the problem by herself, to maximise her chance of being regarded as a valuable and useful employee, and to gain a good reputation at work.

24.     In response to questions from the Tribunal, the applicant said she had never received any negative feedback about her work performance from her employer or supervisors.  She was aware that work appraisals were performed periodically, but she had never personally seen any of those performed on her.

25.     The applicant’s position is that she did not suffer from pain before performing computer-based work with her employer.  Mr Anforth, counsel for the applicant, contended that the applicant need not suffer constant pain in order for the condition to be regarded as an injury.  Fluctuating pain is sufficient.  Mr Anforth further contended that the applicant had an injury in 2003 that occurred at her workplace, but no claim was made for this injury.  The injury was aggravated in 2006 due to her workplace (the aggravation being the subject of this claim).  Mr Anforth said that even if other factors such as depression and bullying contributed to the applicant’s condition and her perception of pain, the evidence of the applicant, supported by medical evidence, was that her work materially contributed to her condition.  Mr Anforth relied on the evidence of Associate Professor Cohen and the decision of the Federal Court in Mellor v Australian Postal Corporation [2009] FCA 504.

MEDICAL EVIDENCE

associate professor cohen

26.     Associate Professor Milton Cohen, Rheumatologist, examined the applicant on 26 July 2007 and provided reports dated 2 August 2007 and 12 January 2009[6].  Associate Professor Cohen told the Tribunal that he believed there was not a great deal of variance between his diagnosis and that of Associate Professor Barnsley.  He said that some medical practitioners may describe a condition from an anatomical perspective, whilst other practitioners may prefer a physiological description.  Associate Professor Cohen said that rotator cuff dysfunction and adhesive capsulitis are very similar diagnoses, arising from different perspectives.

[6] Exhibit 4.

27.     Associate Professor Cohen agreed that depression could amplify pain.  He opined that keyboarding could cause or aggravate dysfunctional rotator cuff, and that the condition the applicant complained of in 2006 could have been the same condition complained of in 2003.

28.     Dr Cohen said he had only examined the applicant on one occasion, and was not able to comment on the cause of her current symptoms or condition.

associate professor barnsley

29.     Associate Professor Les Barnsley, Consultant Rheumatologist, examined the applicant on 23 July 2008 and prepared a report dated 4 August 2008[7].  He had access to the applicant’s records and file data.  Associate Professor Barnsley opined that the applicant might have had a frozen shoulder or capsulitis in 2006 leading into 2007.  He said that there was no abnormality on the ultrasound, and the history of spontaneous recovery was consistent with that diagnosis.  The cause of that condition, in the absence of any specific injury, according to Associate Professor Barnsley, was usually constitutional.  He stated that he did not consider that the applicant’s work environment contributed materially to her condition in 2006.  Associate Professor Barnsley said that he could see no evidence of rotator cuff dysfunction.

[7] Exhibit 2.

30.     Associate Professor Barnsley noted that the applicant was still complaining of right shoulder and neck pain when he examined her, for which he could find no cause.  He suggested that the applicant might have some residual regional pain problem, meaning that she complains of pain for which he can find no cause.  Associate Professor Barnsley said based on the history provided by the applicant and documents, it was clear that there had been an unsatisfactory relationship with her work environment.  He identified this as a risk factor for the development of neck and arm pain.

31.     Associate Professor Barnsley said that there was very little evidence that adhesive capsulitis was a condition made worse when the arm on the affected side is opened up sideways.  Keyboarding and using a mouse were not activities, in his opinion, that would aggravate the condition.

32.     Associate Professor Barnsley said that the applicant gave an inconsistent history of pain, when he compared her evidence to that documented in the notes of the general practitioner.  He expressed concern that the applicant has a firmly held belief that her problem is due to work, and that the situation becomes a self-fulfilling prophecy.

dr wareham

33.     Dr Wareham, general practitioner, provided two reports, dated 25 April 2007 and 12 June 2009.  Dr Wareham said the applicant first reported pain in her neck, right arm and shoulder on 18 August 2006.  The applicant reported that the pain was present for at least ten years.  Dr Wareham said she concluded on the balance of probabilities, based on the history given to her by the applicant that her symptoms were due to overuse in the workplace.  Dr Wareham also considered that emotional factors would also have contributed.  She expressed the view that depression can cause altered perception of pain.  Dr Wareham said she had not seen evidence of the applicant experiencing excruciating, almost unbearable pain.  When asked if she would ever force her patients to take time off work, Dr Wareham replied that she would never force her patients to do anything.

CONSIDERATION

34.     The applicant claims to have neck, right shoulder and arm pain that commenced in 2003, when she was required to perform a large amount of keyboarding at work.  She claims that the degree of pain varied, but there is a direct correlation between 2003 and 2008 with the degree of pain experienced and the amount of keyboarding she was required to perform at work.  The applicant produced a timeline to demonstrate this point.  It is contended that the Tribunal should view that claim as an aggravation of an existing injury.

35.     The respondent contends that any injury that the applicant may have to her neck, right shoulder and arm was neither caused nor aggravated by her work.  Ms Godtschalk, counsel for the respondent, pointed to a number of discrepancies in the applicant’s evidence, and argued that the Tribunal could therefore place no reliance on either the evidence of the applicant, or the conclusions of expert witnesses who had relied on the history provided by the applicant to formulate their opinions.

36.     The first issue for the Tribunal is to characterise the nature of the applicant’s aliment.  Associate Professor Cohen is the only expert witness that could provide a medical explanation for the applicant’s complaints at the time he examined her.  When Associate Professor Barnsley examined the applicant approximately 12 months later, he could find no medical explanation for the applicant’s symptoms.  He speculated that the applicant might have had a frozen shoulder in 2007 at the time she was seen by Associate Professor Cohen.  Associate Professor Cohen explained to us that there was very little difference in the diagnosis of frozen shoulder, and the diagnosis he provided (rotator cuff dysfunction).  Associate Professor Cohen gave a detailed explanation of why this was so, and explained that his diagnosis was made on the basis of history and examination findings.  His examination of the applicant was more temporal to the claimed aggravation, and he is the only expert physician to observe signs.  Associate Professor Cohen’s diagnosis is consistent with that of Associate Professor Barnsley.  Therefore, we find that the applicant was suffering from right rotator cuff dysfunction in July 2007.

37.     The Tribunal must consider when the onset of that condition occurred.  Associate Professor Cohen said that the same condition could explain the applicant’s symptoms that she reported to him in 2003.  The problem is that Associate Professor Cohen relied on the applicant’s history to draw that conclusion, and we find the applicant to be an unreliable historian, for reasons explained below.  Whilst there is evidence that the applicant sought acupuncture treatment in 2003 for a right arm condition, there is no contemporaneous medical evidence to support her claim that symptoms she experienced at that time were the same as those experienced in 2007.  The Workstation Assessment Checklist, dated 5 June 2006, records that the applicant complained of right arm and neck symptoms for several months.  On balance, we therefore accept that the applicant was suffering from a similar kind of injury, best described as right rotator cuff dysfunction, in 2003, and that that condition was aggravated on or about 7 August 2006.

38.     The next question for the Tribunal is whether the aggravation of right rotator cuff dysfunction was contributed to in a material degree by her employment. The evidence of Associate Professor Cohen is that keyboarding can be a cause or aggravation of the rotator cuff dysfunction.  Associate Professor Barnsley disagreed.  He explained that the mechanism or injury or aggravation is outward movements of the arm, which is not the kind of movement performed by the activity of keyboarding.  Associate Professor Barnsley told the Tribunal there is very little evidence that keyboarding causes any injury.

39.     It is difficult to prefer the evidence of either expert witness in this case.  Both Associate Professors Barnsley and Cohen are experts in similar fields with similar experience and expertise.  Both gave clear and considered evidence. Dr Wareham, general practitioner, was of a similar view to Associate Professor Cohen.  She opined that repetitive activity, such as keyboarding at work, could cause or aggravate an injury of a kind the applicant suffered.  We made no finding on the matter of whether keyboarding can cause or aggravate a rotator cuff dysfunction.  The question is whether that activity aggravated right rotator cuff injury.  Dr Wareham and Associate Professor Cohen both opined that it did, however, both practitioners, in coming to that view, relied on the history provided by the applicant, which we find unreliable for the following reasons.

40.     Firstly, there is the issue of when the applicant first experienced her symptoms.  The applicant reported to Dr Wareham that she had been experiencing problems for greater than ten years; however after lodging her claim, the applicant consistently told medical professionals that she first experienced the pain in 2003, when she was required to perform excessive keyboard work.  The applicant provided no reasonable explanation for this discrepancy, and we consider this to be an attempt to validate her claim that her condition is caused by work-related keyboarding.

41.      Secondly, the applicant’s reporting of the times her pain was worse was not supported by contemporaneous evidence.  Also, there is contemporaneous evidence that contradicts her evidence.  For example, the Workplace Assessment Report of June 2005 does not identify that she developed right arm and neck pain as a result of increased keyboarding activities.  Rather, the report indicates that the applicant reported keying was not a problem, and that the problems currently experienced by the applicant were in her left elbow and arm, and that these problems commenced months earlier.  The applicant also reported that 50% of her work activities were associated with mouse use.  This conflicts with her evidence to the Tribunal, which was that from May 2005 she had a resurgence of pain in her right arm and neck associated with an increase in demand for extensive repetitive keying, yet she had only had extra keying activities for one month.

42.     Thirdly, the applicant’s description of the severity of her pain is not supported by contemporaneous evidence and, in our opinion, is not believable.  When asked to explain what she meant by pain, she rated pain to be eight to ten on a scale of ten.  She said the pain was excruciating, almost unbearable and that it prevented her from cleaning her teeth or brushing her hair.  In her evidence-in-chief, the applicant said acupuncture did not help, yet she did not pursue further treatment and did not even seek prescription pharmaceutical treatment.  The applicant said she suffered from pain varying between a rating of seven and ten for several months from mid 2005 to February 2006.  Again, she did not seek medical treatment for the pain.

43.     We do not accept that the applicant’s explanation for not seeking medical treatment (other than unsuccessful acupuncture).  She told us that that her doctor, Dr Wareham, would have forced her to have time off work.  We do not accept this to be the truth.  It is in conflict with the evidence of Dr Wareham, who said she never forces patients to do anything, and inconsistent with the applicant having presented on multiple occasions to her general practitioner between 2003-2007, with what could reasonably be regarded as issues that could result in time off work.  For example, on numerous occasions the applicant complained to Dr Wareham about emotional issues, including work-related dissatisfaction, and was often treated with antidepressants.  It does not seem credulous to us that the applicant would so readily complain of work-related emotional distress to the degree that she did, but would not mention pain that was almost unbearable in order to protect her job.  Further, the applicant claims to have been experiencing pain of a level seven to ten out of ten between April 2006 and July 2006.  During this time, she stated that she had a very supportive manager who encouraged her to seek help through Comcare.  In spite of this, the applicant did not consult a general practitioner until August 2006.  The applicant was unable to explain why she did not seek treatment from a medical practitioner other than Dr Wareham.  Dr Wareham gave evidence that at no time had she observed the applicant to be experiencing what looked like excruciating or unbearable pain.  Whilst it is the evidence of the applicant that her pain was worse when keying and abated when she ceased the activity, she told Dr Wareham that she experienced no improvement after four weeks off work in February 2007[8].  For these reasons, we do not accept that the applicant was experiencing pain of the frequency and severity that she has reported.

[8] Exhibit 10.

44.     Fourthly, we do not accept as credible the applicant’s explanation that she did not report her pain to her supervisors for fear of reprisal.  In June 2003, the applicant requested a Workstation Assessment and reported having pain for some months.  At that point in time she was not concerned about her pain being recorded in the assessment (this assessment would have been accessed by her supervisor). The applicant rotated through various positions from 2003 to 2006, and had a number of different supervisors.  She said there was no negative feedback about her work performance at any time.  But we are not persuaded that the applicant did not report her condition for fear of reprisal at work.

45.     In summary, the applicant’s account of her condition appears to have been contrived to support her contention that the cause and ongoing aggravation of the problem is solely related to the work-related activity of keying.

46.     It was suggested that pain from any cause could be exacerbated or increased by depression.  The evidence of Dr Wareham was that she had been treating the applicant for depression for some time.  The applicant claims to be depressed because of work-related factors.  No claim has been made for depression, and there is no expert medical evidence before the Tribunal in relation to this condition.  The Tribunal is not in a position to decide whether the applicant suffers from depression, and if so, whether workplace factors contributed to that condition.  We find the workplace incident is not responsible in any way for the pain currently experienced by the applicant.

47.     We find that the applicant suffered a right rotator cuff dysfunction injury, aggravated on or about 7 August 2006.  We do not consider that work-related factors contributed to the aggravation.

CONCLUSION

48.     In summary, the Tribunal is not satisfied the applicant’s employment materially contributed to the aggravation of her right rotator cuff dysfunction.

49.       The Tribunal affirms the decision under review.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member, and Dr M Miller, Member.

Signed: .....................[Sgd]........................................................
             Associate

Date of Hearing  24 September 2009
Date of Decision  9 November 2009
Counsel for the Applicant         Mr A Anforth  
Solicitor for the Applicant          Mr W Hawkins
Counsel for the Respondent     Ms J Godtschalk
Solicitor for the Respondent     Ms C King