Kingdon and Comcare

[2008] AATA 950

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 950

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1333

GENERAL ADMINISTRATIVE DIVISION		)
Re		BARBARA JEAN KINGDON

Applicant

And COMCARE

Respondent

DECISION

TribunalDr J D Campbell, Member

Date24 October 2008

PlaceSydney

DecisionThe decision under review is affirmed.

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

Dr J D Campbell
  Member

CATCHWORDS

WORKERS’ COMPENSATION – carpal tunnel syndrome – claim lodged and liability accepted while working in 2000 – claim for increase in symptoms in 2006, with retirement in 2002 – decision under review affirmed.

RELEVANT ACT

Safety, Rehabilitation and Compensation Act 1988: ss 4, 14, 16

CITATIONS

Re Sivapalan and Australian Postal Corporation [2008] AATA 249

Re Sivapalan and Australian Postal Corporation [2008] AATA 98

Tablizo and Australian Postal Corporation [2007] AATA 1565

Telstra Corporation Limited v Hannaford (2006) 90 ALD 263

REASONS FOR DECISION

24 October 2008	Dr J D Campbell, Member
SUMMARY

1.      Mrs Kingdon is a 68-year-old retiree.  She was employed by Centrelink as a customer service officer until 14 August 2002.  Mrs Kingdon worked 33 hours per week over a four-day period as her ordinary hours of work.

2.      Mrs Kingdon was referred by Dr Ireland, her treating general practitioner, to Dr Burton, a consultant neurologist for nerve conduction studies.  On 28 March 2000, Dr Burton concluded that the findings of such studies were consistent with the presence of a right carpal tunnel syndrome and a mild distal median neuropathy of the left wrist (T4).

3.      Mrs Kingdon lodged a claim for compensation dated 4 May 2000 in which she stated that she experienced tingling and numbness in both arms and fingers as a result of her “workstation? keyboard? work stress?”  Mrs Kingdon also stated that she had not taken any time off work because of her wrist symptoms (T5).

4.      Ms Frederiksen, an occupational therapist, undertook an assessment of Mrs Kingdon’s workstation on 5 May 2000.  Ms Frederiksen, in the resulting Workstation Assessment Report dated 9 May 2000, detailed recommendations which included provision of a chair that is adjustable in height to at least 650 mm from floor level, an adjustable footrest, a document holder and a floor chair mat, together with Mrs Kingdon incorporating pause gymnastic exercises into her daily routine (T7).

5.      In a report to Comcare on 11 May 2000, Ms Aggio-Warman, the rehabilitation co-ordinator, noted that Ms Frederiksen had stated that work could certainly contribute to the condition (T9).

6.      On 12 May 2000, Comcare accepted liability for Mrs Kingdon’s right carpal tunnel syndrome with date of injury deemed to be 27 March 2000 and in so finding, concluded that Mrs Kingdon’s right carpal tunnel syndrome:

(a)was contributed to in a material degree by her employment with Centrelink;

(b)the contribution to her carpal tunnel syndrome is employment-related; and

(c)the employment contribution influenced the contraction or aggravation of her carpal tunnel syndrome (T10, 11).

7.      On 16 June 2000, Ms Aggio-Warman provided an “in-house” action plan to assist Mrs Kingdon in her day-to-day activities (T12).  The plan incorporated the recommendations of Ms Frederiksen, and detailed aspects of monitoring and reporting of concerns (T13).

8.      On 28 June 2000, Dr Ireland provided a medical review certificate in which she stated that Mrs Kingdon was currently at work, was fit to return to work on a full-time basis and able to perform full duties at normal hours.  Dr Ireland noted that Mrs Kingdon currently experienced no symptoms and did not require any treatment (T14).

9.      The duties of a customer service officer are detailed at T15.  Such duties include “dealing with enquires during booked appointments, general and urgent payment enquiries, and determining and processing claims at a sit-down interview workstation”.  Duties also include undertaking “reception duties at a sit-stand reception point on a rotational basis”.

10.     Mrs Kingdon ceased work on 14 August 2002, having been on leave without pay since 11 April 2002 (T32).  Between 28 June 2000 and 11 April 2002, there is no record of Mrs Kingdon having either restricted work duties or work hours because of the accepted condition of right carpal tunnel syndrome.

11.     On 27 February 2006, Mrs Kingdon forwarded a report from Dr Ireland (T19) and accounts for reimbursement from Dr Ireland and an osteopath (T18).  In her report of 27 February 2006 (T19), Dr Ireland stated that Mrs Kingdon had bilateral carpal tunnel symptoms while still at work, that she ceased work in 2002 , that the symptoms remain and have somewhat deteriorated in the last 12 months.

12.     Mrs Kingdon’s claim for reimbursement of medical expenses was deferred on 5 June 2006, for want of evidence connecting such expenses to the accepted condition (T20).  On 21 June 2006, Comcare sought, with Mrs Kingdon’s consent, a report from Dr Ireland (T21).  Dr Ireland requested that further nerve conduction studies be undertaken on 30 June 2006 (T24).  Approval to do so was given by Comcare on 5 July 2006, with Dr Floate, a consultant neurologist, confirming on 12 July 2006 that Mrs Kingdon had a moderately severe right carpal tunnel syndrome and a mild left median nerve abnormality in the carpal tunnel (T28).

13.     In a referral letter to Dr Kemp dated 19 July 2006, Dr Ireland noted that Mrs Kingdon had been increasingly bothered by numbness and tingling over the last 18 months (T29).

14.     In a report dated 22 July 2006 (T31), Dr Ireland noted that:

(a)Mrs Kingdon had tingling and numbness in her right hand on and off since 1999;

(b)the symptoms had become worse over the last 18 months; and

(c)the use of walking stick with the right hand following a knee operation in August 2005 for a period of six months may have contributed to it, but the symptoms did not abate when the use of the stick was ceased in early 2006.

15.     In a further report dated 14 September 2006 (T36), Dr Ireland expressed the opinion that:

(a)it is probable that Mrs Kingdon’s current condition results from an aggravation or worsening of the carpal tunnel syndrome; and

(b)Mrs Kingdon had reported increased tingling in the hands becoming an increasing problem in January 2006, and that in June 2006, she stated that such increased symptoms had been present for 18 months.

16. On 1 December 2006, Comcare determined that it was not liable to pay compensation under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for carpal tunnel surgery.  In so finding, Comcare reasoned that the recent aggravation was not related to Mrs Kingdon’s compensable condition as aggravation factors had occurred after she ceased employment with the Commonwealth (T38).

17. On 14 December 2006, Comcare determined that it was not liable to pay compensation under s 16 of the Act for osteopathic expenses as detailed, as the medical treatment claimed did not relate to the compensable condition (T40).

18.     Mrs Kingdon, on 4 January 2007, made a request for a reconsideration of the determination of 14 December 2006 (osteopathic expenses) (T41).  Comcare affirmed the earlier determination.

ISSUES

19. The relevant issue in this matter is whether Mrs Kingdon is entitled to be paid compensation pursuant to s 16 of the Act for the cost of reasonable medical treatment obtained in relation to an accepted injury.

MEDICAL EVIDENCE

dr hicks, consultant orthopaedic surgeon

20.     In a report dated 9 February 2006, Dr Hicks, a consultant hand and wrist orthopaedic surgeon, noted that Mrs Kingdon started to experience tingling and pins and needles in both hands at night in 1999/2000, with the right hand being worse than the left.  Dr Hicks noted that Mrs Kingdon put up with her symptoms which did not often trouble her during the day.

21.     Dr Hicks noted that Mrs Kingdon told him that in the last 12 months there has been an increase in her pain and numbness, which is waking her at night.  Dr Hicks also noted that Mrs Kingdon had had no specific treatment.

22.     Dr Hicks concluded that Mrs Kingdon has bilateral carpal tunnel syndrome, with the right hand being the more symptomatic side.  Dr Hicks noted that while Mrs Kingdon’s symptoms may have commenced while she was working, they were principally nocturnal rather than during her work activities.  He further noted that Mrs Kingdon had not worked for the past three years, with her symptoms becoming more troublesome in the last 12 months.

23.     Dr Hicks concluded by stating that he considered that her work is no longer a significant aggravating factor in the etiology of her carpal tunnel syndrome.

dr bornstein, consultant orthopaedic surgeon

24.     In a report dated 10 August 2007, Dr Bornstein, a consultant orthopaedic surgeon, concluded that:

(a)Mrs Kingdon has idiopathic carpal tunnel syndrome and that there is really nothing of an objective nature to suggest that this was related to her employment;

(b)osteopathic treatment is not the correct form of treatment;

(c)the correct form of treatment is surgical release;

(d)Mrs Kingdon did not sustain any injury at work;

(e)Mrs Kingdon does not have any impairment in relation to her bilateral carpal tunnel syndrome, a constitutional condition, at the time of examination; and

(f)her condition is entirely non-work related.

CONSIDERATION AND FINDINGS

25.     This matter is being considered, by consent of both parties, on the papers.  I have reviewed all the material that is before me and such includes all material summonsed by Comcare.  From a review of the summonsed material in relation to the matter before me, I observe that there is no material inconsistent with what I have already detailed in this decision.  I would also observe that Mrs Kingdon has had a significant number of orthopaedic conditions relating to her cervical spine, lower back and knee, all of which have, I note, been subject to investigations and treatment.

26.     Earlier in this decision, I have detailed the history of Mrs Kingdon’s complaints in relation to the right and left wrist since late 1999, early 2000.  I find no evidence of inconsistency in her clinical history as described to and detailed by doctors up to August 2007, when she was seen by Dr Bornstein.

27.     Further I would observe that the medical evidence before me is of singular opinion, namely that Mrs Kingdon suffers from bilateral carpal tunnel syndrome, with the right carpal tunnel syndrome causative of more symptoms than the left, although an early presenting symptom had been some loss of strength in the left arm.  I so find that Mrs Kingdon suffers from bilateral carpal tunnel syndrome.

28.     The medical evidence before me from both Dr Hicks and Dr Bornstein is particular.  Dr Bornstein is of the opinion that carpal tunnel syndrome is almost always (99.5%) of constitutional origin, with Mrs Kingdon’s clinical history of symptomology being entirely consistent with such origins, and having little relationship, as regards causation, with workplace events.

29.     Dr Hicks would by way of inference in his report of 9 February 2006 where he states that “her work is no longer a significant aggravating factor”, signify that work may have been an aggravating factor and not a causation factor in the presentation in 2000.

30.     My attention was also directed to Tablizo and Australian Postal Corporation [2007] AATA 1565, and Sivapalan and Australian Postal Corporation [2008] AATA 98; AATA 249. Both matters were to do with carpal tunnel syndrome and the relationship of work as a causation element in such a syndrome. I note that in both cases, repetitious manual work, in which the identified force and repetition of such activity (namely clearing stackers of mail) had been nominated as a causation element in carpal tunnel syndrome. Nevertheless, apart from such repetitive manual work, the constitutional nature of carpal tunnel syndrome remains extant in both cases.

31. I am mindful that in addressing the medical expenses claim pursuant to s 16 of the Act, it is open to me to revisit the original acceptance of liability pursuant to s 14 of the Act (Telstra Corporation v Hannaford (2006) 90 ALD 263 considered and applied). Section 4 of the Act defines injury as a disease, an injury, or an aggravation of that injury suffered by an employee with the injury or aggravation of the injury arising out of or in the course of the employee’s employment. Section 4 also defines disease as an ailment or an aggravation of an ailment that was contributed to in a material degree by the employee’s employment.

32. In addressing the s 14 issue, I consider that there is almost an evidentiary void as regards Mrs Kingdon’s workplace and/or work duties being either causative or contributing in a material degree to the causation of carpal tunnel syndrome. There is simply no discussion of what duties may have played a part, with Mrs Kingdon in her claim suggesting either her workstation, keyboard or work stress as a causation element. I note that an occupational therapist was reported as stating that work could certainly contribute to the condition of carpal tunnel syndrome. This statement would appear to form the basis for the finding by Comcare that Mrs Kingdon’s right carpal tunnel syndrome was contributed to in a material degree by her employment by Centrelink.

33.     It is difficult to understand what the occupational therapist is reported as saying, for the medical evidence outlined would suggest that carpal tunnel syndrome is of a constitutional origin, with perhaps repetitious manual work of a defined nature making a material contribution.  Further, it is evident from both Dr Hicks and Dr Bornstein that the opinion as expressed by the occupational therapist as regards causation is inconsistent with their opinion both generally and more particularly, as regards the matter in question.

34.     The symptoms of her conditions as nominated by Mrs Kingdon involved tingling and numbness in both arms, particularly at night, since 1999.  She also experienced such symptoms at work.  While a workstation evaluation was undertaken and recommendations made as to provision of ergonomic aids such as chairs and mats, and incorporation of exercises, there was no evidence of a change of duties, nor of continuing symptomology, as evidenced by Dr Ireland's certificate of 28 June 2000.  In such circumstances, I find it difficult to conclude that there is any evidence of a work-related aggravation.  Such a finding is consistent with the clinical history of her symptoms as described by Mrs Kingdon and the opinion of Dr Bornstein.

35.     With such findings, I am unable to conclude that Mrs Kingdon’s employment has had any part to play in the causation of her right carpal tunnel syndrome.  Nor am I able to discern that there is sufficient evidence on which I could base a finding, made on the balance of probabilities, that Mrs Kingdon suffered an aggravation of her right carpal tunnel syndrome that was contributed to in a material degree by her employment.

36. In such circumstances, I conclude that on review of the original acceptance of liability of the right carpal tunnel syndrome, there is insufficient evidence and/or indeed an absence of evidence to support the original acceptance of liability. As a consequence of such a finding, any claim for compensation pursuant to s 16 of the Act must fail.

37.     Finally in the alternative, I again note the clinical material provided by Dr Ireland in relation to the deterioration in Mrs Kingdon’s right carpal tunnel syndrome as evidenced by increasing symptomatology circa 2006.  I note that Mrs Kingdon ceased work in August 2002, with there being no clinical material suggesting Mrs Kingdon suffered from right carpal tunnel symptomatology from 28 June 2000 until 27 February 2006 when Dr Ireland reported that symptoms had deteriorated over the last 12 months.

38.     I further note the opinions of Dr Hicks (work is no longer a significant aggravating factor) and Dr Bornstein (carpal tunnel syndrome is of constitutional origin and deterioration is consistent with the clinical progress of the condition).

39.     In the light of such evidence, I conclude that the deterioration of Mrs Kingdon’s right carpal tunnel syndrome, as evidenced by more troublesome symptoms, has on the balance of probabilities, no relationship to her employment with Centrelink.

40. As a consequence of such a finding, Mrs Kingdon’s claim for medical expenses pursuant to s 16 of the Act must fail.

41.     I would conclude by affirming the decision under review.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:   ......................[Sgd]............................
                  Ms Radhika Prasad, Associate

Date of Decision:  24 October 2008
Appearance for the Applicant:  Self-represented
Solicitor for the Respondent:     Sparke Helmore Lawyers