Kerrie Gray and Comcare

[2014] AATA 287

[2014] AATA 287

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1991
Re	Kerrie Gray
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	12 May 2014
Place	Brisbane (heard in Cairns)

The decision under review is affirmed.

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Deputy President PE Hack SC

CATCHWORDS

COMPENSATION – whether the condition amounts to an injury - necessary relationship between condition and employment.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14

REASONS FOR DECISION

Deputy President PE Hack SC

12 May 2014 

1. The applicant, Ms Kerrie Gray, is a clerical employee in the Department of Human Services.  In November 2012 she lodged a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), for a condition described in her claim form as,[1]

   Left Release Trans Interposition (early on-set arthritis) due to the nature of processing work using constant mouse/keyboard actions.

   On 21 February 2013 the respondent, Comcare, determined that it was not liable to pay compensation to Ms Gray for the claimed condition.  That decision was affirmed on reconsideration on 15 April 2013.

   [1]           Exhibit 1, page 88.

2. Ms Gray seeks a review of that decision.

3. The provisions of the Act need only be briefly noted. By virtue of s 14 of the Act, Compere is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. As Ms Gray is undoubtedly an employee and the condition has, at least, resulted in impairment, the sole issue in the proceedings is whether the condition amounts to an injury.

4. The term "injury" is defined in s 5A of the Act to mean either a physical or mental injury arising out of, or in the course of, the employee's employment (or the aggravation of a physical or mental injury is the aggravation arose out of, or in the course of, the employment) or a disease suffered by an employee. The term "disease" is defined in s 5B as meaning an ailment suffered by an employee (or the aggravation of such an ailment) that was contributed to, to a significant degree, by the employee's employment by the Commonwealth. A "significant degree" means "substantially more than material".

5. It is unnecessary to decide whether Ms Gray's condition amounts to a disease or an injury simpliciter. That is so because the evidence falls well short of demonstrating the necessary relationship between the condition and Ms Gray's employment.

6. That evidence is, in the main, Ms Gray's medical history.  It has been conveniently recorded by Dr Khursandi, a consultant orthopaedic surgeon, as follows,[2]

   Late in 2009 Ms Gray noticed pain at the base of the thenar eminence of her left hand with radiation to the volar aspect. The pain was noticed mainly with using the computer mouse and also typing on the keyboard. Following consultation with her general practitioner Dr Delaney, she was referred for ultrasound examination of the left hand performed in 2010 and a ganglion was diagnosed. She received treatment with anti-inflammatory medication and continued to work. She noticed gradual increase of pain at the base of her thumb and thenar eminence with stiffness of the thumb, particularly when she tried to grip objects.

   In May 2011, she consulted Dr Golam Mustafa her General Practitioner and an ultrasound examination of the thumb and wrist were performed on 4 May 2011. In mid 2011, she was referred to Cairns Base Hospital Orthopaedic Department where she consulted Dr Robert Pozzi. She received a local steroid injection at the base of the left thumb which did not provide lasting relief.

   In February 2012, she was reviewed at Cairns Base Hospital and advised excision of the ganglion. Dates were set for the operations on June 2012, August 2012 and September 2012 at on each occasion the operations were cancelled.

   On 28 June 2012, an ultrasound examination was undertaken at the Cairns Base Hospital and in November 2012 she consulted Dr James Cox, Orthopaedic Surgeon at the Cairns Base Hospital Outpatients. Osteoarthrosis of the basal joint of the left thumb was diagnosed and she was advised ligament reconstruction and tendon interposition of the carpometacarpal joint of the left thumb. Her name was added to the waiting list and she continued treatment with Nurofen tablets.

   On 28 March 2013, Dr Jeremy Loveridge performed the operation of ligament reconstruction and tender interposition through a dorsal incision of the carpometacarpal joint of the left thumb. According to the operation notes obtained from the hospital osteoarthrosis was noted in the carpometacarpal joint with synovitis. The procedure involved excision of the joint and interposition with abductor pollicis longus tendon. Post-operation the thumb and wrist were immobilised in a plaster cast for approximately six weeks and by the second week of May, she commenced home-based exercises. Since June 2013 she has been treated with two sessions of physiotherapy the last occasion was 10 July 2013.

   Ms Gray mentioned that she has had considerable relief of pain since the operation.

   [2]Exhibit 3 pages 2 – 3. This extract includes corrections to typographical errors which Dr Khursandi made in    the course of his evidence.

7. Dr Khursandi diagnosed osteoarthrosis of the carpometacarpal joint of the left thumb, a joint commonly the site of osteoarthrosis in persons beyond the third decade (Ms Gray is now 43).  He could find no activity in Ms Gray's employment which could have contributed to the constitutional osteoarthrosis.

8. Dr Morgan Price, an orthopaedic registrar at Cairns Base Hospital, is of the same view.  His report (undated) refers to activities of gripping and grasping as affecting the carpometacarpal joint but that the use of keyboards or a mouse would not affect the underlying condition.[3]

   [3]           Exhibit 4, page 1.

9. At the hearing Ms Gray advanced, for the first time, the hypothesis that a motor vehicle accident in 2003 on her way home from work caused the onset of her osteoarthrosis.  At that time, injuries sustained in the course of a journey to or from work were compensable.  But the difficulty for Ms Gray is that there is no evidence that the traffic incident occasioned the onset of osteoarthrosis.  On the contrary, the evidence of Dr Khursandi is that a soft tissue injury, which appeared from Ms Gray's description to be the nature of the injury on this occasion, could not cause it.

10. I do not doubt that Ms Gray genuinely believes that her condition is attributable to her employment.  That might seem to be a reasonable conclusion in circumstances where her work activities are causing pain.  But, as Dr Khursandi explained, while the pain is brought about by the use of the hand in the course of work (and in other activities), the underlying condition is constitutional; that is, work does not cause the underlying condition, it merely provides an occasion when the symptoms associated with the condition are noticed.

11. In the result, there is no evidence that demonstrates the necessary connection between Ms Gray's condition and her employment.  All the evidence is to the contrary.  The decision under review will be affirmed. 

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC

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Associate

Dated 12 May 2014 

Date of hearing	29 April 2014
Applicant	In person
Counsel for the Respondent	Mr A Harding
Solicitors for the Respondent	Australian Government Solicitor