Knox and Comcare (Compensation)
[2019] AATA 2196
•24 July 2019
Knox and Comcare (Compensation) [2019] AATA 2196 (24 July 2019)
Division:GENERAL DIVISION
File Number: 2017/0920
Re:Georgina Knox
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:24 July 2019
Place:Perth
The Tribunal orders that:
(a)the reviewable decision be set aside and the matter be remitted to the Respondent for reconsideration with the direction that the symptoms suffered by the Applicant from January to May 2016 in her left shoulder and elbow associated with the Applicant’s conditions of rotator cuff tendonitis/subacromial bursitis/impingement left shoulder and common extensor origin tendonitis/lateral epicondylitis left elbow and any continuation of those symptoms were an injury for the purposes of s 14 of the SRC Act; and
(b)the Respondent pay the costs of these proceedings incurred by the Applicant.
........[sgd]................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant suffered an injury under s 5A – whether the Applicant suffered from a disease for the purposes of s 5A(1)(a) – whether the Applicant suffers from an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment – whether suffering pain is, in itself or in conjunction with an underlying pathological condition suffered by the Applicant, an ailment or an aggravation of an ailment – Applicant’s pain as an aggravation of an ailment – decision under review is set aside and substituted
LEGISLATION
Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Federal Court of Australia Act 1976 (Cth) – s 25(6)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 4(1), 5A, 5A(1), 5A(1)(a), 5A(1)(b), 5A(1)(c), 5B, 5B(1), 5B(2), 5B(3), 6, 14, 14(1), 16Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
CASES
Australian Telecommunications Commission v Treloar (1989) 11 AAR 69; 90 ALR 202
Comcare v Canute (2005) 148 FCR 232
Comcare v Power (2015) 238 FCR 187
Comcare v PVYW (2013) 250 CLR 246
Comcare v Reardon (2015) 148 ALD 356
Comcare v ZZRP [2019] FCA 952
Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369
Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Judith Ann Doherty and Comcare [1995] AATA 295
June Smith and Comcare [1995] AATA 344
Morehead and Australian Postal Corporation (Compensation) [2018] AATA 4535
Skobelkin-Mulcair and Comcare (Compensation) [2019] AATA 1054
Stefaniak and Comcare (Compensation) [2019] AATA 1866
Tippett v Australian Postal Corporation [1998] FCA 335Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
SECONDARY MATERIALS
Anandacoomarasamy et al, ‘The impact of obesity on the musculoskeletal system’ (2008) 32 International Journal of Obesity 211
Macquarie Dictionary (online at 22 July 2019)
Shorter Oxford English Dictionary (1992, Oxford University Press)
REASONS FOR DECISION
Deputy President Boyle
24 July 2019
THE APPLICATION
The Applicant seeks the review of a decision of the Respondent made on
21 December 2016 (the reviewable decision) (R9, T11) to affirm a determination made on 3 November 2016 (the determination) (R9, T9).The determination was not to accept liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for claims for “left shoulder impingement on the background of degenerative change in her shoulder” and “left lateral epicondylitis on the background of extensor origin tendinopathy”.
The claim for compensation submitted by the Applicant (R9, T3) identified the conditions for which claim was made as “L Shoulder, Subacromial Bursitis and L Elbow Lat Epicondylitis” (R9, T3 at 7).
BACKGOUND
The Applicant was born in April 1964.
The Applicant commenced employment with the Department of Human Services (DHS) in 1998. At the time of her claimed injury in May 2016 the Applicant was, and had been for the term of her employment by DHS, employed as a Customer Service Officer (CSO) (Applicant’s statement A3).
The Applicant is still employed by the Respondent in the CSO role in the New Customers business line.
In her Workers’ Compensation Claim form dated 9 September 2016 (the claim form)
(R9, T3), the Applicant, in response to the question “What happened and how were you injured?”, stated (R9, T3 at 7):
During a heavy workload period that started in Jan 2016 I noticed my shoulder was beginning to hurt and then by March/April my elbow started hurting as well. At the time I was using a [sic] Evoluent Mouse. By May the pain was getting very uncomfortable. The pain did increase throughout the working work [sic] from excessive typing and computer mouse usage.
In the claim form, in response to the question “When did you first notice your symptoms/injury?” the Applicant advised “27/05/2016 3:00 PM” (R9, T3 at 8) and in response to the question “When did you first seek medical treatment?” the Applicant advised “28/05/2016” (R9, T3 at 9).
The Applicant obtained the first medical certificate dated 28 May 2016 (R9, T5.2) from
Dr John Cameron. That certificate, in response to the statement “[w]orker’s description of the injury/disease, etc.” advised “L shoulder/elbow pain” and in response to the statement “[w]orker’s description of how it occurred” advised “Using a computer mouse and excessive typing with L arm”. Dr Cameron’s “[m]edical Assessment” in that first medical certificate was “subacromial bursitis/Moderate lateral epicondylitis”.
The Applicant reported the onset of her symptoms to her team leader, Mr Wassim Arabi. The evidence as to the date when she made that report is conflicting. In her witness statement dated 21 September 2017 (A3) the Applicant does not refer to her having advised her team leader or any other representative of the Respondent of the onset of symptoms. That witness statement identifies the date of the injury as 27 May 2016. Her witness statement dated 6 April 2018 (A2) says that she reported her injury to her team leader on 12 May 2016 (A2, para. 41). That witness statement also identifies the date of the Applicant’s injury as being 27 May 2016. As noted above at [8], the Applicant’s claim form identified the date of the onset of her symptoms as 27 May 2016 which suggests that she could not have reported her injury/symptoms to her team leader on 12 May 2016 or 27 May 2016 was not the date of the onset of her symptoms.
In his witness statements of 16 September 2016 (R9, T5.10) and 1 December 2017 (R3), the Applicant’s team leader, Mr Arabi, says that he was first advised by the Applicant of her symptoms on 17 May 2016.
The Applicant also advised in the claim form (R9, T3 at 7) that from January 2016 she noticed that her shoulder started to hurt, that by March/April her elbow started to hurt and that in May 2016 her doctor had sent her to see a physiotherapist. At the time of completing the claim form on 2 September 2016 the Applicant had, according to the claim form, been to 12 physiotherapy sessions.
It is clear from the evidence before the Tribunal that the Applicant had
an onset of symptoms prior to 27 or 28 May 2016. By that time she had already sought medical treatment. On 17 May 2016 the Applicant underwent an ultrasound with Dr Sean Lim, consultant radiologist, who provided a report to the Applicant’s general practitioner, Dr Cameron (R9, T10.5 at 91). It appears that Dr Cameron had seen the Applicant on
6 May 2016 and provided a referral for the ultrasound on that date (transcript at 114 and A6). Dr Cameron subsequently, by letter dated 28 May 2016, referred the Applicant to the Thomsons Lake Physiotherapy practice for assessment (R9, T10.4).
On or about 9 September 2016 the Applicant lodged the claim form (R9, T3).
It is not clear on the evidence before the Tribunal what treatment, other than physiotherapy, the Applicant received following the issue of the first medical certificate on 28 May 2016. In the Applicant’s first witness statement (A3, para. 66) dated 21 September 2017, the Applicant states that “[p]rior to having my shoulder operation, I had physio treatment (13 sessions) on my shoulder and elbow. 4 sessions were paid by employer and I have incurred costs of 9 sessions @ $70 = $630.”
In paragraph 67-70 of that witness statement, the Applicant says that she has had:
·cortisone injections in her shoulder and elbow covered under Medicare;
·exercise rehabilitation treatment (five sessions) with an exercise physiologist;
·an operation on her shoulder covered under Medicare; and
·fortnightly physiotherapy treatment commencing six weeks after the operation.
On 28 October 2016 the Applicant was examined by Dr Mark Floyd, consultant occupational physician (R9, T8).
By letter dated 3 November 2016 the Respondent advised the Applicant that it had determined that her claim for compensation had not been accepted (R9, T9) (see [2] above).
THE ISSUES
The Applicant’s statement of facts, issues and contentions (A1), identifies the issues as being:
3.1The Tribunal is required to determine whether the Applicant has sustained an injury or disease as defined in sections 5A and 5B of the SRCA and whether the Respondent is liable to pay compensation to the Applicant pursuant to sections 14 and 16.
3.2The most significant questions to be determined are whether the Applicant’s left shoulder and elbow symptomology arose out of or in the course of her employment with the Department of Human Services as is required by section 6 of the SRCA and whether the diagnosed injury is an “disease” [sic] for the purposes of section 5B.
The Respondent’s statement of facts, issues and contentions (R1) identifies the issues as follows:
4.1.Whether the Applicant suffers from an injury, other than a disease, which arose out of, or in the course of, the Applicant’s employment for the purposes of paragraph 5A(1)(b) of the SRC Act;
4.2.Whether the Applicant suffers from an “ailment” as defined in section 4 of the SRC Act, or aggravation of such an ailment, for the purposes of the first limb of the definition of “disease” in section 5B of the SRC Act;
4.3.If so, whether the ailment or aggravation of same was contributed to, to a significant degree, by the Applicant’s employment with DHS and is therefore a “disease” for the purposes of section 5B of the SRC Act and may therefore be an “injury” for the purposes of paragraph 5A(1)(a).
In his opening statement, counsel for the Applicant advised that the Applicant no longer sought to argue that she suffered an injury simpliciter, that is an injury other than a disease for the purposes of s 5A(1)(b) of the SRC Act. The following exchange took place:
MR MORRISSEY: Otherwise, sir, in the Applicant’s submission, you’ll hear evidence from the Applicant being in the form of her tendered statements that she experienced a gradual onset of pain in the left shoulder and elbow as a result of performing duties at work which primarily included manipulating the keyboard and the mouse over a protracted period of time. So, we’re not dealing with a sudden injury by accident.
DEPUTY PRESIDENT: So, it’s not the Applicant’s alternative case that it’s an injury simpliciter?
MR MORRISSEY: No, Deputy President. The factual basis and analysis of this case, in my submission, is analogous to the facts that were considered by Cremean SM in a case called Morehead v Australian Postal Corporation...
(Note: obvious errors in the transcript have been corrected by the Tribunal.)
With that concession, the issues for the Tribunal are:
(a)whether, for the purposes of s 5A(1)(a) of the SRC Act, the Applicant suffers from a disease (as defined in s 5B of the SRC Act); and
(b)whether, for the purposes of determining issue (a), the Applicant suffers from an ailment (as defined in s 4 of the SRC Act) or an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment.
The hearing and the parties’ respective submissions at and after the hearing proceeded on the basis of the Applicant’s claim for an injury being made under s 5A(1)(a) of the SRC Act. While the Applicant did not specifically abandon making the claim under
s 5A(1)(c) (that is, an aggravation of a physical or mental injury), the case and the parties’ submissions proceeded on the basis that the Applicant’s claim was made under s 5A(1)(a) being a disease, that is, an ailment or aggravation of such an ailment that was contributed to, to a significant degree, by the Applicant’s employment (see para. 4 of Applicant’s closing submissions).
The Tribunal agrees that the facts disclosed by the evidence, in particular the Applicant’s own account of the gradual onset of symptoms over a period of months, did not support an argument for an injury simpliciter under ss 5A(1)(b) or (c) of the SRC Act.
THE LEGISLATIVE FRAMEWORK
The Respondent’s general liability to pay compensation is set out in s 14 of the SRC Act. Section 14(1) provides that:
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.
“Injury” is defined in s 5A(1) of the SRC Act as follows:
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.
“Disease” is defined in s 5B of the SRC Act as follows:
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.
Section 4(1) of the SRC Act includes the following definitions:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
THE HEARING
The hearing took place on 11, 12 and 13 March 2019. The Applicant was represented by Mr Neil Morrissey and the Respondent was represented by Ms Jessica Henderson.
The following witnesses gave evidence at the hearing:
·the Applicant;
·Dr Mark Floyd, consultant occupational physician;
·Mr Anthony Creek, the Applicant’s service manager;
·Dr Barrie Slinger, orthopaedic surgeon;
·Dr Anthony Cairns, consultant orthopaedic surgeon;
·Dr John Cameron, the Applicant’s general practitioner; and
·Mr Wassim Arabi, the Applicant’s former team leader.
The following documents were admitted into evidence:
·Applicant’s statement of facts, issues and contentions dated 11 May 2018 (Exhibit A1);
·Applicant’s supplementary statement dated 6 April 2018 (Exhibit A2);
·Applicant’s statement dated 21 September 2017 (Exhibit A3);
·Report of Dr Barrie Slinger dated 18 September 2017 (Exhibit A4);
·Dr Anthony Cairn’s medical evidence dated 2 April 2008 (Exhibit A5);
·Bundle of documents of Applicant’s medical appointments (Exhibit A6);
·Journal article titled ‘The impact of obesity on the musculoskeletal system’ (Exhibit A7);[1]
[1] Anandacoomarasamy et al, ‘The impact of obesity on the musculoskeletal system’ (2008) 32 International Journal of Obesity 211.
·Respondent’s statement of facts, issues and contentions dated 4 June 2018 (Exhibit R1);
·Witness statement of Anthony Creek (Exhibit R2);
·Witness statement of Wassim Arabi (Exhibit R3);
·Joint medico-legal report of Dr Barrie Slinger and Dr Anthony Cairns (Exhibit R4);
·Supplementary report of Dr Anthony Cairns (Exhibit R5);
·Material pursuant to s 71 of the SRC Act (Exhibit R6);
·Report of Dr Anthony Cairns with attachment dated 29 June 2017 (Exhibit R7);
·Briefing letter to Dr Anthony Cairns dated 30 May 2017 (Exhibit R8);
·T-documents (T1-T12) (Exhibit R9); and
·Bundle of documents from Thomsons Lake Medical Centre (Exhibit R10).
The Tribunal also received submissions from the parties after the hearing as follows:
· Applicant’s closing submissions received 10 April 2019;
· Respondent’s closing submissions received 2 May 2019; and
· Applicant’s responsive submissions received 14 May 2019.
THE EVIDENCE
Onset of symptoms, workload and changes in work practice
The factual evidence by both parties dealt at length with the Applicant’s workload and changes in what was required of the Applicant leading up to the onset of her symptoms from January through to May 2016 when she reported her symptoms to her team leader.
The Applicant’s evidence on symptoms and workload
As noted above, the Applicant made two statements (A2 and A3).
In the first of her statements (A3) the Applicant said:
·she works (and presumably did work at the time of the onset of symptoms January-May 2016) full-time nine days a fortnight;
·the work entails working in a rostered environment of inbound/outbound phone calls, follow up/processing of work, meetings and training sessions;
·she was required to handle customer enquiries in a professional and courteous manner within the APS Code of Conduct ensuring that the customer is satisfied with the service;
·she was required to process work in a timely manner and meet key performance indicators (KPI);
·some of the work involved complexity, the making of difficult decisions and lengthy written documentation;
·the overall KPI for inbound calls was three minutes per call which required the Applicant to complete tasks “in real time” while the customer was on the phone;
·in May 2016 she had an allowance of two to five minutes between calls to finish any processing before the next call which meant typing documents/notes as quickly as possible and recording any follow up action required;
·she was required as part of the process to use multiple templates with multiple options;
·prior to her “injury” the Applicant maintained 60-80 in-trays (electronic) over a 14 day period with minimal overdue work;
·
the method of work changed “[a]pproximately 2 years ago” (i.e. around
September 2015). New customer officers were expected to take phone calls received from both business lines after 3 pm;
·she was expected to finalise any work arising out of the phone call and transfer the customer to a general pool on the system;
·
this change in processing increased the number of matters to approximately
100-120 pieces in her in-tray (presumably from 60-80) over the 14 day period;
·since the “restructure” the Applicant says that she noticed a considerable increase to her allocations of work coming in from both the New Customers business line and the Mainstream business line;
·since the change in the procedures she has struggled to maintain the workload under the expected 100 items in the in-tray;
·over the six to eight months leading up to May 2016 she had to work fast to maintain and sustain a reasonable level in finalising work to meet KPI;
·the increased in-tray numbers and phone calls meant a lot of additional documentation of customer contacts and decisions which placed immense stress on her body and especially her shoulder and elbow resulting in the gradual onset of pain in both;
·her performance report for the period from December 2013 to May 2016 shows that her workload increased from 198 in-trays to 360 in-trays;
·over that period there was an increase in the number of incoming calls;
·with the increase in the workload she could not complete all of the tasks associated with a call in the two to five minute window between calls;
·the pressure of typing quickly was enormous and she was questioned when she did not meet KPI;
·macro templates were introduced to ensure that all information was captured from customers;
·the new macros used only one macro per New Customer;
·that changed when the Applicant was moved into the Mainstream work (when is not clear) where there are from one to seven macros per customer;
·each macro required use of the mouse to select the relevant option which caused her to use the mouse “excessively” requiring her to move her arm back and forth from the keyboard to the mouse constantly and clicking the mouse to copy and paste information; and
·the limited time, with the increased work required, necessitated the Applicant typing quicker.
In her witness statement of 6 April 2018 (A2) the Applicant goes into some more detail about the work practices through the period of her employment. She states that:
·in late 2013-early 2014 two business lines, New Customers and Mainstream were amalgamated;
·due to lack of staff they could not meet KPI;
·the Customer Management Tool (CMT) was introduced in June 2013. This had to be used with every customer interaction;
·workloads increased in late 2014 meaning that the team members could not meet KPI;
·the CMT had 10 functions from which to select a macro that had to be completed, and copied and posted into the computer program;
·the macros had multiple options within them which had to be completed in respect of each call;
·in June 2014 the system was changed so that any technical issues that the Applicant had was to be communicated via an online email rather than by direct contact with the service support officer;
·over time various new templates/macros were introduced (e.g. Incarcerated Customers Team formed in May 2015 which had its own template documents);
·her pain started with a nagging pain in her left shoulder in January/February 2016 with the pain moving to her left elbow in around March 2016;
·the constant movement of her arm and shoulder when using the mouse and typing “aggravated” her arm and the pain intensified over a couple of months;
·the pain became “unbearable in April/May 2016” and she reported the pain to her team leader, Mr Arabi, in May 2016;
·in April 2016 the phone system was taken over by Telstra and a new DHS software was implemented which increased the phone modes from four to 15;
·
up to the time of her “injury”, the Applicant was a CSO and was required to sit at her computer for eight hours a day minus two 15 minute
tea-breaks and three quarters of an hour for lunch;
·when the Mainstream business unit phone calls were also diverted to the Applicant (when is not clear) the number of phone calls increased from around 10 to 17 over a day;
·as a result of the changes the number of in-trays (work allocated to the Applicant) “exploded over time”; and
·her discussion with her team leader, Mr Arabi on 19 April 2016 shows that she had 190 in-trays current with 61 being overdue.
The Respondent’s evidence on symptoms and workload
A number of the aspects of the Applicant’s claims of significant increases in workload are disputed by the Respondent. In his witness statement dated 16 September 2016
(R9, T5.10), Mr Arabi says:·he was, at that time, the “Team Leader of the New Customers/Mainstream Team 1” in Perth where the Applicant was located. He had held that position and was the Applicant’s line manager since 6 July 2015;
·the Applicant advised him of her “injury” on 17 May 2016. She advised him that she had started feeling pain in her left shoulder and left elbow approximately two months prior to her advising him;
·the Applicant completed an online injury report on 24 May 2016 and on that date he had a discussion with her to action her online report. In discussing the action to be taken the Applicant advised Mr Arabi that she had noticed an increase in the pain over the last few months as she felt her workload had increased;
·
although the time in question is busy because it is tax lodgment time,
the Applicant was not expected to complete more work. There was an increase in telephone shifts and less time attributed to processing work;
·following the report and discussion he arranged for a workplace assessment to be undertaken by the People Support/early intervention team. He encouraged the Applicant to take her OH&S breaks and to let him know if the pain got any worse; and
·a workplace assessment was undertaken on 30 May 2016 and a senior rehabilitation Case Manager was, at that time, continuing to provide rehabilitation assistance to the Applicant.
In a statement dated 1 December 2017 (R3) Mr Arabi said:
·he was not working in the area when the amalgamation of Mainstream and New Customers business lines occurred;
·he cannot comment on whether there was an increase in workload following the amalgamation;
·for the first half of the day the Applicant’s work involved the New Customer work. This would involve the Applicant reviewing online applications which would take between 10 and 15 minutes per application. She would then call the other party to the child support claim advising that a claim had been lodged against them;
·there were no time pressures in relation to the outbound calls to new customers, which usually took 20 to 45 minutes, however, “there would be some questions asked if staff took longer than 15 minutes before they made their first outbound call in relation to the new customer application” (R3, para. 10);
·January and February were busy times of the year because many break-ups tend to occur around this time. At times in this period the national office would advise team leaders that due to the backlog they would send New Customer staff a third of the new applications;
·he agrees that as a member of the New Customer half of the team after amalgamation the Applicant would have received an increase in the number of inbound telephone calls that she took;
·the Applicant was always encouraged to take her allocated breaks;
·the Applicant’s work involved the use of macros and a computer mouse. He agrees that after amalgamation the Applicant would have experienced an increase in the use of macros due to more macros being introduced over time;
·some of the outbound and inbound calls required the writing of lengthy documents; and
·the Applicant’s workload fluctuated from day-to-day.
A witness statement dated 9 March 2018 was also provided by Anthony Creek (R2) who advised that he was the Applicant’s service manager between approximately 2012 and June 2014. His evidence went to the work that the Applicant undertook. Nothing that
Mr Creek said in his witness statement materially adds to, alters or contradicts anything that either Mr Arabi or the Applicant said in their evidence. Under cross-examination
Mr Creek agreed that he had no contact with the Applicant after June 2014 and therefore had no knowledge of what the Applicant’s workload or practices were after that time (Transcript at 159).
The medical evidence
Dr Cameron
Dr Cameron was the Applicant’s treating general practitioner from 2002. He gave evidence at the hearing, referring to practice notes that had been produced under summons, that he had treated the Applicant for: Type 2 diabetes “diagnosed a few years ago”; proteinuria for which he referred her to a specialist; hypertension; and “anxiety a few years ago, but that seems to have settled down now too” (Transcript at 108-109).
On 17 May 2016 the Applicant underwent an ultrasound with
Dr Lim, consultant radiologist, who provided a report to Dr Cameron (R9, T10.5 at 91).
Dr Lim’s report (R9, T10.5) relevantly noted:
(a)a clinical history of possible rotator cuff pathology and possible epicondylitis;
(b)the left shoulder ultrasound showed “…moderate subacromial bursal thickening with impingement on abduction. Supraspinatus demonstrates moderate tendinopathy with bursal surface fraying but no tears”;
(c)the Applicant had “Moderate subacromial bursitis” but that the “Rotator tendons are otherwise intact with tendinopathy of supraspinatus and subscapularis but no tears”; and
(d)the left elbow ultrasound showed “moderate lateral epicondylitis with mild asymptomatic medial epicondylosis but no tears”.
Dr Cameron, referring to his practice notes at the hearing, confirmed that on 20 May 2016 he had seen the Applicant and recorded in his notes “moderate subacromial bursitis and rotator tendon issues and to discuss with the employer if it’s workers’ comp”. He also confirmed that his practice note recorded the Applicant as having advised him on that day that she used her left-hand to operate a mouse.
Dr Cameron then, by letter dated 28 May 2016 (R9, T10.4), referred the Applicant to the Thomsons Lake Physiotherapy practice for assessment.
Also as noted above (see [8]), Dr Cameron issued the first medical certificate on
28 May 2016 (R9, T5.2) in which he noted his “Medical Assessment” as “subacromial bursitis/Moderate lateral epicondylitis”. Dr Cameron issued progress medical certificates thereafter on 30 August 2016 (R9, T5.3), 1 September 2016 (R9, T5.4), 30 September 2016 (R9, T10.8), 21 October 2016 (R9, T10.7) and 27 October 2016 (R9, T10.6)
Following the referral by Dr Cameron of the Applicant to the Thomsons Lake Physiotherapy practice, the Applicant received physiotherapy treatment from that practice. In an email dated 9 August 2016, Todd Moir, Bachelor of Physiotherapy, of the Thomsons Lake Physiotherapy practice (R9, T5.7), advised that the Applicant had presented on
31 May 2016 with left shoulder and elbow pain and that her condition had improved over the course of treatment.
Report of Dr Floyd dated 28 October 2016
At the request of the Respondent’s insurer (briefing letter dated 19 October 2016 to
Dr Floyd – R9, T7) Dr Mark Floyd, consultant occupational physician, examined the Applicant on 19 October 2016 and provided a report dated 28 October 2016 (R9, T8). That report relevantly:(a)set out the Applicant’s relevant work duties and employment history. Dr Floyd noted that the Applicant advised him that over time her workload had increased including the increased use of macros. It also noted that following a work assessment she had been provided with a roller bar press clicking mouse system which she felt helped her to a degree with her elbow but thought that the adopted posture was not helpful for her shoulder;
(b)reported that while she was generally happy at work, stress associated with the increased workload had increased the number of “overdues”;
(c)in relation to the sequence of events leading to the claimed injury, the Applicant reported that she first had difficulty with her shoulder in January 2016 prior to which she had no recollection of issues with her shoulder or elbow. She could not remember ever having to go to the doctor or take medication for this condition;
(d)
the Applicant advised that there was no actual event leading to the “injury”.
The Applicant attributed the increased pain to increased workload. She reported a general pattern of her symptoms building up over the day and over the week;
(e)
the first symptom she noticed was a build-up of pain around her left shoulder.
She initially had a full range of movement “but described developing a sharp catching pain with activities away from her body or above shoulder height”;
(f)her left elbow pain developed about a month after her shoulder pain;
(g)x-rays revealed enthesopathic changes around the greater tuberosity and that “the AC joint demonstrates mild OA changes.” Ultrasounds of her left shoulder noted mild subacromial bursal thickening with impingement on abduction and supraspinatus which demonstrated moderate tendinopathy with bursal surface fraying but no tears;
(h)the Applicant reported that she had no injections or other intervention and no specialist referral. She had been taking Nurofen and Panadol Osteo reporting that she is allergic to codeine;
(i)generally her symptoms progressively increased from May 2016 and the physiotherapy has been of little help;
(j)the Applicant continued in full-time employment working a nine day fortnight;
(k)she reported difficulty with neck pain following a motor vehicle accident in 1998. Her neck pain continues to come and go and the longest that she has been without pain is for “perhaps six months”;
(l)
she has trochanteric bursitis for which she receives injections with the last injection two years earlier. She has Type 2 diabetes for which she takes daily medication. She has a history of depression for which she takes 100 mg of Lexapro daily.
She has hypertension for which she takes 10 mg Lercanidipine daily along with
10 mg of Atenolol and 30 mg of Atacand; and
(m)Dr Floyd undertook a full physical examination of the Applicant and reviewed the medical records, x-rays and ultrasound reports.
In the summary and assessment section, Dr Floyd opined that:
From a causal perspective, the nature of her work tasks are not of the type that would cause either of her conditions which are essentially degenerative conditions. From the perspective of work causation there is evidence that high force activities combined with repetition are associated with an increased risk of developing such conditions, particularly with the shoulder undertaking activities with sustained elevation or abduction about chest height. In Ms Knox’s case, her work tasks are not of the type known to cause such condition but would plausibly, if as she says, in the presence of increased exposure, cause some activation of pain symptoms.
In response to specific questions asked in the briefing letter, Dr Floyd responded as follows:
2.Did Ms Knox suffer from a condition at the time of the claimed date of injury 27 May 2016 that has previously resolved?
At the time of the claimed date of injury on 27 May 2016 I am of the opinion that Ms Knox had left shoulder impingement and left elbow lateral epicondylitis.
…
6.In your opinion, is Ms Knox’s current medical condition an aggravation, acceleration or recurrence of any pre-existing or underlying condition? Please detail.
In my opinion Ms Knox’s presentation would be in keeping with an aggravation of an underlying left shoulder impingement and tendinopathy of the common extensor origin. There is as such, considering her work tasks, not been an acceleration. There is no indication this is a recurrence of a pre-existing condition.
Employment Relationship
7.In your opinion, has Ms Knox’s employment contributed to, to a significant degree, to the causation of this diagnosis? If yes, please detail.
With regard to causation of the underlying pathology as noted above, Ms Knox’s work tasks are not of the type that would cause tendinopathy of the common extensor origin or changes in her subacromial space to account for her impingement. I would note however that her work tasks with repetitious actions of the left upper limb are of the type that could act to aggravate and bring on the symptoms but as such would not be causative of her condition.
8.Ms Knox claimed compensation for ‘L shoulder subacromial bursitis and L elbow lateral epicondylitis’ as a result of ‘everyday working duties such as computer base and call centre’ and ‘excessive typing and computer mouse usage’. Did these factors, significantly and solely contribute to Ms Knox’s claimed condition. If so, are these factors still contributing to her claimed condition? Please provide specific details in respect of the contribution they are having on her condition?
As stated above the work tasks would not be causative of the conditions. The work tasks would plausibly cause some aggravation of her underlying complaint if she has had an increase in demand.
I note at the heart of this there is a workload issue which I am reliant on Ms Knox’s reports. I would note it is not uncommon to see with an increase in workload that previously asymptomatic underlying degenerative conditions can be symptomatic. As such these exposures would not cause the conditions but can act to bring on these symptoms.
9.In your opinion, what are the significant contributory factors (employment and non-employment) which have contributed to Ms Knox’s claimed condition? Please include in your answer
a)Specific details in respect of each of the relevant factors
b)The level of contribution these factors had on Ms Knox’s condition
The most significant contributor to Ms Knox’s condition is the underlying degenerative change in her shoulder and elbow. The work factors, from her reports are of an increased workload, which would have acted to aggravate the underlying condition to bring on symptoms.
In February 2017 the Applicant was seen by Dr Joseph Henry, orthopaedic registrar, at Fremantle Hospital and Health Service. Dr Henry advised, in a report to Dr Cameron dated 20 February 2017 (A6 at 28), that the Applicant was suitable for shoulder arthroscopic subacromial decompression and that she was waitlisted for that procedure. The Applicant subsequently underwent that procedure.
Report of Dr Anthony Cairns dated 29 June 2017
At the request of the Respondent, the Applicant was examined by Dr Anthony Cairns, consultant orthopaedic surgeon, on 22 June 2017. In his report dated 29 June 2017 (R7), Dr Cairns reported as follows:
(a)that he had reviewed the report of Dr Floyd dated 28 October 2016 and confirmed with the Applicant the correctness of the medical history, work description and circumstances of the “injury” as recorded by Dr Floyd in his report;
(b)that the Applicant advised that since Dr Floyd’s report she had undergone cortisone injections in her shoulder and elbow which resolved symptoms transiently, only to experience slow recurrence; and
(c)that she has also had the arthroscopic subacromial decompression surgery to her shoulder at Fremantle Hospital.
Dr Cairns also set out the ultrasound and x-ray report results.
In response to questions posed in the letter of instruction from the Respondent, Dr Cairns answered as follows:
3.What is the prognosis of Ms Knox’s condition(s)?
Prognosis:
(i)Left shoulder: She is early in the post-operative recovery phase, but given the nature of the underlying pathology and the treatment undertaken, she should enjoy a good prognosis, allowing for the reservations expressed above.
(ii)Left elbow: In most circumstance this condition resolves over a variable period of time with or without treatment, the possibly adverse impact by diabetes mellitus and obesity noted.
…
5.Do you consider that any condition(s) suffered by Ms Knox have been significantly contributed to by:
Please provide reasons for your opinion
a.Ms Knox’s employment with the Agency (including the period for heightened workload she claims started in January 2016)?; or
While Ms Knox’s employment with the agency may have symptomatically exacerbated the underling conditions, I do not consider that they were causally related to her employment.
b.Factors unrelated to work; or
Factors unrelated to work: Diabetes mellitus and/or obesity.
c.A pre-existing, congenital, constitutional or underlying condition; or
Constitutional and underlying inflammatory nature of the diagnosed conditions, diabetes and obesity.
d.The natural progression of an underlying condition; or
Natural progression of the diagnosed conditions symptomatically exacerbated by her work-related activities.
e. Underlying degeneration
Underlying degeneration as part of the natural ageing process in both disorders.
f. Any other relevant matters.
Not applicable.
6.If you consider that Ms Knox’s current condition(s) was significantly contributed to by her employment with the Agency, do you consider that her condition(s) constitutes an aggravation of a pre-existing condition?
Please note that, for the purposes of this examination, an aggravation is said to have occurred when there has been a permanent and underlying change in a person’s condition.
I do not consider that Ms Knox’s current conditions were significantly contributed to by her employment with the agency, but that they constitute an exacerbation of the underlying pathologies.
I do not consider there to have been a “permanent and underlying change” of the underlying pathology.
Report of Dr Barrie Slinger dated 18 September 2017
The Applicant was seen by Dr Barrie Slinger, orthopaedic surgeon, on 23 August 2017.
Dr Slinger provided a report dated 18 September 2017 (A4) which relevantly reported:(a)the Applicant had worked for the DHS for 18 years as a CSO in Child Support. There had been an increase in the Applicant’s workload over the last three years. Her work involved the use of templates and macros and the use of a mouse as well as typing and making phone calls;
(b)following a workplace assessment the Applicant used an upright mouse operated with her left hand. She felt that that had not provided any assistance;
(c)symptoms in her left shoulder started around January 2016 with gradual onset. She thought that the symptoms related to her increased workload which required more use of the mouse and more frequent completion of templates. Symptoms became more severe over the course of the day and the week;
(d)the ultrasound and x-rays were reviewed which showed, in relation to the shoulder, subacromial bursitis, with tendonopathy of supraspinatus and subscapularis and at the left elbow moderate lateral epicondylitis;
(e)physiotherapy did provide some temporary relief;
(f)shoulder surgery was performed at Fremantle Hospital on 5 May 2017, however, Dr Slinger was unsure of the precise nature of the surgery;
(g)on examination of the left shoulder there was no wasting, no tenderness and movement was notable for pain experienced at extreme elevation and also recovery movement. At the elbow tenderness was present over the lateral epicondyle; and
(h)Dr Slinger noted the x-ray and ultrasound results.
In answer to questions asked by the Applicant’s solicitors in their letter to Dr Slinger,
Dr Slinger provided the following answers:
2.Current symptoms and restrictions complained of by my client arising from the injury sustained to her left shoulder in or about 27 May 2016.
The current symptoms and restrictions described by your client directly relate to the injury or work activity of 27 May 2016.
…
5.Do you consider that any condition(s) suffered by my client have been significantly contributed to by:
a.My client’s employment with the Agency (including the period of heightened workload she claims started in January 2016)
b.Factors unrelated to work
c.A pre-existing, congenital, constitutional or underlying condition
d.The natural progression of an underlying condition
e.Underlying degeneration as part of the natural aging process
f.Any other relevant matters
Please note the response by Dr Cairns in his report dated 29 June 2017 at paragraph 5 on page 4 to this question. Do you agree with his conclusions?
The injuries suffered by your client have been significantly contributed to by your client’s employment with the Agency, and have not been contributed to by factors unrelated to work, a pre-existing, congenital, constitutional or underlying condition, the natural progression of an underlying condition, underlying degeneration as part of the natural aging process or any other relevant matters.
I assume, again, that the response you are referring to in Dr Cairns’ report of 29th June 2017, relates to page 8 question 5, and clearly, my comments do not agree with those conclusions.
6.What is your diagnosis?
The diagnosis is that of subacromial bursitis, degenerative changes at the AC joint, and tendonopathy, which changes pre-existed the work activity, but were asymptomatic, and it was the work activity which has rendered those changes symptomatic. In the absence of that work activity, Ms Knox may well have continued asymptomatic indefinitely, and there is no reason to anticipate that she would be in her present position.
In addition, a tennis elbow, or lateral epicondylitis, which symptoms appear now to have resolved.
…
9.Are you of the view that my client’s present condition was significantly caused by her work conditions in accordance with the history that she has provided you?
I am of the opinion that your client’s present condition was significantly caused by her work conditions, in accordance with the history that she has provided.
10.If you are of the view that my client may be suffering from a pre-existing condition, are you of the view that the recurrence, aggravation or acceleration of any proxidating disability was a contributing factor to that recurrence, aggravation or acceleration and contributed to a significant degree?
If my client’s condition has been superseded by a different condition, please provide your opinion about what factors have contributed to the different condition. Please note response by Dr Cairns in his report dated 29 June 2017 at paragraph 7 on page 4 to this question. Do you agree with his conclusions?
If yes consider that my client no longer suffers the effects of the condition(s) that was significantly contributed to by her employment, can you please advise of the date when you consider she ceased to suffer from the condition. Please note the response by Dr Cairns in his report dated 29 June 2017 at paragraph 8 on page 4 to this question. Do you agree with his conclusions?
I am of the view that your client is not suffering from a pre-existing condition, your client did have pre-existing pathology, which was asymptomatic, and the reason that she is now symptomatic is as a result of the work activity.
Your client’s condition has not been superseded by a different condition, in that respect, I do not agree with the conclusions in the report of Dr Cairns.
Report of Dr Anthony Cairns dated 30 May 2018
At the request of the Respondent Dr Cairns provided a supplementary report dated
30 May 2018 (R5) which answered specific questions relating to medical reports provided by the Applicant and statements made by the Applicant in her witness statements (A2 and A3). Dr Cairns did not re-examine the Applicant for the purpose of preparing the supplementary report. In this report Dr Cairns provided the following information:(a)
in relation to the Applicant’s pre-2016 medical history, based on the report of
Dr Floyd that Dr Cairns had at the time of his examination of the Applicant in
June 2017, he was aware of and had discussed the difficulty that the Applicant had with neck pain after a motor vehicle accident around 1998;
(a)no reference had been made to, and the Applicant did not report, a history at the time of the examination of having suffered a right wrist injury; and
(b)there was no reason for him to change his previous opinion because of the Applicant’s description of her workplace tasks as set out in her witness statement dated 6 April 2018 (A2) or Dr Lee’s practice record of 2 April 2008 (A5).
(Tribunal note: Dr Lee’s record was to the effect that the Applicant had provided a history to him that using a mouse at work was causing pain, that the reason that she had consulted him on that day was “[l]eft shoulder pain” and that there was “[m]ild restriction in abduction” in her left shoulder).
In response to the following questions Dr Cairns provided the following answers:
8.If accepted, would an increase in keyboard and mouse work as described by Ms Knox affect your views on the causal link between Ms Knox’s employment and her claimed conditions? We would be grateful for your reasoning in respect of your answer.
Having reviewed the documentation, I see no reason to change my previously expressed opinion regarding the causal link between Ms Knox’s employment and her claimed conditions, specifically the increasing keyboard and mouse work as described by Ms Knox.
I have expressed the opinion that while on the one hand the activities may, or may not, have exacerbated symptoms arising from the underlying, subsequently identified pathology, which, incidentally (Dr Michael Lee 2 April 2008) appears to be a recurrence of a previously experienced impairment.
In my opinion, apparently shared by Dr Floyd, whereas on the one hand, arguably, the cited activity and demands may have provoked and exacerbated symptoms arising from the underlying pathology, I do not consider that there is a causal link between Ms Knox’s employment and her claimed conditions.
9.We ask you to consider the description of Ms Knox’s mouse at paragraph [83]. If accepted, would that description affect your views on the causal link between Ms Knox’s employment and her claimed condition? We would be grateful for your reasoning in respect of your answer.
Having reviewed the description of Mrs Knox’s mouse at paragraph 83 of her statement, it does not lead me to alter my views regarding the causal link between Ms Knox’s employment and her claimed condition.
The term “causal” is the key element. While it appears that both Dr Floyd and myself have conceded that the employment-related activities, arguably, may have exacerbated the underlying pathology, I do not accept that the activities were the cause of that pathology.
With respect to Mrs Knox’s subsequent observation at paragraph 85, she may well be correct, although review of my handwritten notes at the time of assessment does indicate her 3rd finger. The possibility therefore is that I am in error, or alternatively Mrs Knox counted her fingers beginning with the index as the 1st finger and the middle finger as the second, whereas conventional anatomical terminology counts the thumb as the 1st digit/finger.
Apart from the fact that the finger problem is also likely to be part of an apparent systemic, multifocal inflammatory diathesis in this person, including all the possible contributors to a systemic inflammatory diathesis, the issue is, in my opinion, otherwise of peripheral relevance.
…
11.We ask you to consider the report of Dr Slinger, dated 18 September 2017. We invite your comment on his conclusions in paragraph [5].
As requested, I have reviewed the contents of Dr Slinger’s report of 18 September 2017 and perhaps not surprisingly, do not agree with his conclusions as stated in paragraph 5.
I note Dr Slinger’s correction of the reference to paragraph 5 on page 4, and agree that it appears to relate to paragraph 5 on page 8.
Notwithstanding, I am not of the opinion that the “injuries” result from work-related activities as alleged, and certainly do not accept his statement dismissing “constitutional or underlying condition, the natural progression of an underlying condition, underlying degeneration as part of the natural ageing process or any other relevant matters”, in that the imaging investigations as cited by Dr Slinger himself, Dr Floyd and myself have all demonstrated pre-existing, constitutional, underlying and degenerative pathology within the claimant’s left shoulder.
Further, I note that in his response to question 6, Dr Slinger appears to concede, “degenerative changes at the AC joint, and tendinopathy, which changes preexisted the work activity”, notwithstanding the fact that the worker claims them to have been asymptomatic, and that it was the work activity which “rendered those changes symptomatic”, also noting the record by Dr Lee on 2 April 2008.
(Original emphasis.)
Joint report of Dr Cairns and Dr Slinger dated 26 November 2018
Concurrent evidence was given at the hearing by Dr Cairns and Dr Slinger who also signed a joint report dated 26 November 2018 (A4). The joint report recorded that in relation to the matters within their expertise as orthopaedic surgeons, the matters upon which they agreed were:
•The conditions claimed by the applicant were correctly diagnosed as:
(i)Rotator cuff tendonitis/subacromial bursitis/impingement left shoulder.
(ii)Common extensor origin tendonitis/lateral epicondylitis left elbow.
•That the claimant presented as a credible historian.
And the matters upon which they disagreed were:
•Whereas Dr Slinger holds the view that were it not for the work-related activities said to have provoked the worker’s injury, there was no reasonable presumption that the injury would have occurred.
•On the other hand, Dr Cairns holds the opinion that the pathology within the applicant’s shoulders is the fundamental underlying cause of the emergence of the impairment regardless of the work activities.
•Dr Slinger does not place any particular significance upon identified comorbidities of diabetes mellitus and/or obesity.
•Dr Slinger was not previously aware of the past history of a previous presentation of left shoulder issue, as recorded by Dr Michael Lee on the
2 April 2008.
That history is consistent with previous symptoms relating to similar activity to those she was engaged in at the time of onset of her present symptoms in 2016.
The relevant history does indicate that at the time of the onset of her symptoms in January 2016, the applicant had remained asymptomatic in the interim.
•Dr Slinger is of the view that the work activities undertaken by the applicant were consistent with causation of the condition whereas Dr Cairns expresses the view that they are not typical of the type of activities associated with causation of the condition.
•Dr Cairns is of the view that the onset of symptoms was spontaneous related to the pre-existent, subsequently confirmed pathology, whereas Dr Slinger is of the view that they were work-related.
The joint report summarised the reason for the disagreement between Dr Cairns and
Dr Slinger as being a difference in opinion on the definitions of “condition” and “causation”. The report advised that:
It is fair to say that Dr Slinger holds the view that provocation of symptoms related to the underlying pathology was as a result of the work-related activities, whereas Dr Cairns holds the view that the fundamental cause of the symptoms is the underlying pathology which, of itself, is not work-related.
The parties’ submissions on the law
Applicant
In her closing submissions the Applicant argues that her left shoulder and elbow symptomology have “arisen out of or in the course of or in the course of her employment” with the Department of Human Services as is required by law. The Applicant contends that she has suffered a disease as defined in s 5B of the SRC Act (paras. 4.1 and 4.1.1)
The Applicant refers to the High Court decision in Comcare v PVYW (2013) 250 CLR 246 (PVYW) which, the Applicant submits, considered whether an injury or disease arose “out of or in the course of employment” for the purposes of the SRC Act. That case, according to the Applicant, did not displace the decision in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis).
In the Tribunal’s view, those cases are not relevant in this matter. Both cases were considering injuries, other than a disease, suffered by the applicant, in particular injuries simpliciter. In PVYW (at [1]) the applicant:
had been required to visit a regional office of the agency in New South Wales with another work colleague to observe the budget review process, meet the regional staff and undertake training. For that purpose, she stayed overnight at a nearby motel which had been booked by her employer. During the course of the evening at the motel, the respondent engaged in sexual intercourse with an acquaintance. In that process, the glass light fitting above the bed was pulled from its mount by either the respondent or her acquaintance and it struck the respondent on her nose and mouth. As a result, the respondent suffered physical injuries and a subsequent psychological injury”.
In Hatzimanolis (at [1]) the question was “…whether the appellant, who was employed to work in a remote area in Western Australia, was within the course of his employment when he sustained injury during a sightseeing journey on his day off.”
In both cases the court was looking at injuries simpliciter and the issue was whether the injury occurred “arising out of or in the course of the employee’s employment”. That is not the issue in this case. As noted at [21] above, in opening the Applicant’s counsel advised the Tribunal that the Applicant was not seeking to argue that the injury is an injury simpliciter under s 5A(1)(b) (or presumably (c)), but is a disease (as that term is defined s 5B(1) of the SRC Act) for the purposes of an injury under s 5A(1)(a) of the SRC Act.
The need to determine whether an injury is one “arising out of, or in the course of,
the employee’s employment” arises only if the injury is claimed to be one coming within the operation of subsections 5A(1)(b) or (c) of the SRC Act, namely an injury “other than a disease”. The Applicant’s closing submissions at para. 4.1.1 make the claim that the Applicant has suffered a disease as defined in section 5B of the SRC Act. Section 5B of the SRC Act does not require the disease, being an ailment, to have been suffered “arising out of, or in the course of, the employee’s employment”, rather it requires the ailment, or an aggravation of an ailment, to have been “contributed to, to a significant degree, by the employee’s employment”. That is the relevant consideration in the present case.The Applicant (at para. 4.1.2) of her closing submissions says that the circumstances of her case are analogous to those considered by the tribunal in the matter of Morehead and Australian Postal Corporation (Compensation) [2018] AATA 4535 (Morehead) which dealt with the issue of whether the applicant’s carpal tunnel syndrome was a disease under
s 5B(1) of the SRC Act and therefore an injury for the purposes of s 5A(1)(a) of the SRC Act (at [57]). In considering that question, Senior Member Cremean (at [58]) considered whether the applicant’s ailment “became worse or was made worse by reason of employment” and was therefore an aggravation as defined in s 4 of the SRC Act.
The Tribunal agrees that that is a relevant consideration in the present case.In looking at that issue, Senior Member Cremean considered the judgments in Comcare v Reardon (2015) 148 ALD 356 (Reardon) and Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) wherein Kitto J at 634[8] observed:
…if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.
The Applicant’s closing submissions also refer to Gething DCJ’s judgment in Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36 and submits that the evidence in the present case establishes that the Applicant’s work duties with the Respondent, particularly whilst repetitively using the mouse and keyboard at a fast pace, brought on the symptoms in her left shoulder and elbow in early 2016.
The Applicant submits that while Kitto J was considering the meaning of the word “exacerbation” in Semlitch, “exacerbation” and “aggravation” are synonymous (at para. 4.1.15).
The Applicant also refers to the Tribunal decisions in:
(a)June Smith and Comcare [1995] AATA 344 in which Senior Member Dwyer, having cited Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 (Beattie) and Semlitch held:
[21] That passage is clear authority for the view that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.
(b)Judith Ann Doherty and Comcare [1995] AATA 295 at [12] per Senior Member Hollows citing the Federal Court in Beattie at 378 to the effect that “pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place...”; and
(c)Tippett v Australian Postal Corporation [1998] FCA 335 (Tippett) Finkelstein J accepted that “[i]f the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of the employee's employment then then the employee will have suffered a compensable injury”.
Respondent
The Respondent points out that the Applicant’s submissions in relation to the Applicant suffering an injury “arising out of, or in the course of [her] employment” are not relevant given the Applicant’s abandonment in opening of any claim for an injury simpliciter under subsections 5A(1)(b), or presumably (c), of the SRC Act and her reliance on her injury being a disease being an ailment or the aggravation of an ailment under s 5B(1) of the SRC Act. The Tribunal agrees with the Respondent’s position. This claim proceeded on the basis of an injury under s 5A(1)(a) of the SRC Act. The Tribunal must be satisfied on the balance of probabilities that the Applicant has a disease being an ailment suffered by the Applicant or the aggravation of an ailment suffered which was contributed to, to a significant degree, by the Applicant’s employment by the Respondent.
The Respondent accepts that the Applicant is suffering from an ailment as defined in the SRC Act, being left shoulder impingement and left lateral epicondylitis, both degenerative in nature. However, the Respondent denies that the ailment (and/or any aggravation of same) was contributed to, to a significant degree, by the Applicant’s employment with DHS (para. 6 of Respondent’s closing submissions).
In relation to the meaning of the word “aggravation”, the Respondent cites the definition in the Macquarie Dictionary (online) which is:
noun
1. increase of the intensity or severity of anything; act of making worse: *aggravation of lung disease by air pollution – CHARLES BIRCH, 1976.
2.something that irritates or exasperates: the fact that the train was late was a further aggravation.
3. the state of being irritated or exasperated: *And, to add to the aggravation, she couldn’t answer back without crying. – JOSEPH FURPHY, 1903.
4. British Colloquial trouble caused by aggressive behaviour; harassment.
The Respondent also refers to the Shorter Oxford English Dictionary which defines “aggravation” as follows:[2]
1. Oppression;
2. Accusation;
3. An ecclesiastical censure;
4. An increasing, or being increased, in gravity or seriousness;
5. Exaggeration;
6. The action of irritating;
7. An extrinsic circumstance which increases the guilt or misery of a calamity or crime.
[2] Shorter Oxford English Dictionary (1992, Oxford University Press) ‘aggravation’ (cited by the Respondent being the 1992 edition, however, the Tribunal notes that this may be a reference to the 1972 edition).
The Respondent submits that the common English usage of the word “aggravation” with respect to medical problems is an increase in intensity, severity, gravity or seriousness.
In other words, to aggravate a medical condition is to make it worse. It also says that that meaning is consistent with the orthodox medical usage of the word “aggravation” and refers to the evidence of Dr Cairns who provided to the Tribunal publications of the American Medical Association’s Guides to the Assessment of Permanent Impairment,[3]
and shared with the Tribunal the standard definitions of “exacerbation” and “aggravation” contained therein. Dr Cairns’ evidence was (Transcript at 67-68):
DR CAIRNS: Well, fundamentally I rely upon, and I’ve brought three publications of the American Medical Association’s Guides to the Assessment of Permanent Impairment, and they define the two words, “exacerbation” as being a temporary increase in symptoms deriving or derived from an underlying condition, as distinct from “aggravation’, which is held to cause a permanent change in the degree or extent of that underlying pathology.
[3] American Medical Association, Guides to the evaluation of permanent impairment (AMA Press, 2002).
The Respondent’s position (para. 15 of Respondent’s closing submissions) is the mere experience of symptoms in the workplace is insufficient to meet that definition of “aggravation”. The workplace must make the underlying condition worse, in order for it to have aggravated the underlying condition.
In relation to Kitto J’s passage from Semlitch cited by the Applicant of salt being applied to a wound, the Respondent argues that that case was dealing with legislation that defined injury by way of a collection of substantives – aggravation, acceleration, exacerbation, and deterioration. Justice Kitto expressly criticised an argument based on rolling the four substantives into one, and said at 635 at [7]:
The four substantives are not synonymous with each other, and a court should assume that it is for the differing shades of meaning of which they are susceptible that the draftsman has chosen to employ them all. They are not all given their true force by asking simply whether the disease has been made worse.
Insofar as the Applicant referred to the tribunal’s decision in Morehead (see [63] above) which cited Finkelstein J’s judgment in Tippett (see [67] above) as authority for finding aggravation and exacerbation to be synonymous, the Respondent submits that Finkelstein J cited Beattie to the following effect:
In considering the meaning of the word “aggravate” in the Compensation Act, which is the only one of the four words that appeared in the definition of “injury” in the New South Wales statute considered in Semlitch, it has been held that the same principles apply; that is to say an injury will be aggravated if the experience of the injury is increased or intensified…
The Respondent says that the decision in Beattie was the result of a referral to the Full Court of the Federal Court of Australia pursuant to s 25(6) of the Federal Court of Australia Act1976 (Cth) on two questions of law. Relevantly, those questions of law were:
1. Does pain doing no pathological harm constitute an injury within the meaning of the Compensation (Commonwealth Government Employees) Act 1971?
2. Does pain doing no pathological harm constitute an aggravation of a pre-existing injury caused in non-compensable circumstances within the meaning of the Act?
And that the definition of injury in the relevant legislation in that case included
“the aggravation, acceleration or recurrence” of any physical or mental injury, and
“the aggravation, acceleration or recurrence” of a disease where employment was
“a contributing factor”.
The Respondent argues that the joint judgment of Evatt and Sheppard JJ in Beattie concluded that the terms “exacerbate” and “aggravate” were synonymous for the purpose of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) as repealed by Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). They dealt with Kitto J’s express distinction between the two at 379 in the following terms:
It may be one thing to accord different shades of meaning to the two words when they are used in juxtaposition in the same statutory provision. It is another thing to regard them as having different meanings when considering a provision which includes one of them but not the other. In our opinion all that was said about the word “exacerbate” in the Federal Broom case applies with equal force in relation to the word “aggravate” in the context in which it is used in the legislation here.
According to the Respondent it is noteworthy, however, that their Honours did not, in fact, conclude that “an injury will be aggravated if the experience of the injury is increased or intensified”, contrary to the assertion of Finkelstein J. Their Honours went on to say:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.
The Respondent submits that accordingly, although their Honours said that they were adopting “all” of what was said about the word “exacerbate” in respect of the word “aggravate”, they in fact did not do so.
In relation to Kitto J’s analogy of salt being applied to an open wound in Semlitch,
the Respondent points out that Evatt and Sheppard JJ in Beattie (at 379) stated that putting pressure on a broken leg (ostensibly a similar analogy) will cause pain but will not aggravate the injury. The Respondent submits that the shade of meaning adopted by
Kitto J in respect of the word “exacerbate” when used in distinction to “aggravate”, was in fact adopted by Evatt and Sheppard JJ. They appeared to accept that rubbing salt in a wound would exacerbate it, but did not accept that aggravation is caused in a similar scenario. According to the Respondent there would be an inherent lack of logic in adopting Kitto J’s comments to apply in their entirety directly to the word “aggravation” on the basis that it’s a synonym for “exacerbation”. If the meaning of “aggravation” and “exacerbation” was affected by their use in juxtaposition with each other in the legislation, then Kitto J’s definition of “exacerbation” is unreliable to apply outside that particular legislation, because it is affected by that juxtaposition. There would be no sense in adopting a definition of “exacerbation” that was dependent on its distinction from the term “aggravation” and then applying it to the word “aggravation” on the basis that the two words are synonymous.
Accordingly, the Respondent submits that the judgment in Beattie goes no further than a finding that the “aggravation” of an injury does not necessarily require identifiable pathological change. The balance of Kitto J’s conclusions should not be applied to the word “aggravated”. The Respondent submits that the judgment of Kitto J in Semlitch is not, and should not be considered, precedent for the proposition that an injury is aggravated whenever the experience of the injury is increased or intensified, and any tribunal decision that has indicated binding precedent to that effect should not be followed without careful consideration and review and that the preferable meaning of the word “aggravation” is to describe circumstances that render a disease or injury more serious.
The Respondent does accept that the mere absence of identifiable pathological change does not preclude a finding that a disease has been aggravated (Respondent’s closing submissions para. 32).
In relation to the issue of the meaning of “contributed to … by the employee’s employment” in s 5B(1), s 5B(2) of the SRC Act makes it permissible to consider a number of factors in the determination of whether the employment was a contributing factor to a significant degree. Those factors include: the duration of the employment; the nature of the employment and particular tasks involved in the employment;
any predisposition of the employee; any activities of the employee outside the employment; and any other matters affecting the employee’s health. It is not an exhaustive list, and it provides very little guidance on the meaning of the phrase “contributed to … by the employee’s employment”.
Further, when the SRC Act speaks of “the employee’s employment” as a contributing factor, it refers to what the worker in fact does in his or her employment (Semlitch at 641 per Windeyer J). The contributing factor must be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
In relation to the phrase “significant degree” in s 5B of the SRC Act, the Respondent notes that that term is defined in s 5B(3) of the SRC Act as “a degree that is substantially more than material” and refers to the Federal Court’s statement in Comcare v Power (2015) 238 FCR 187, 201 (Power) that “substantially more than material must necessarily be substantially greater than one which is trivial” (at [78]).
The Respondent also refers to the Minister’s Second Reading Speech at the time of the introduction of the Bill that became the SRC Act. This was to the effect that the Act changed the previous legislation which only required an employee to establish that his or her employment was a contributing factor in the contraction of a disease. The SRC Act,
in the form that it was in at the time of its introduction, required the employee to show that his or her employment contributed in a material degree to the contraction of the disease. That, as noted above, has been amended in the present form of the SRC Act to require that the employee’s employment to contribute, to a significant degree, to the ailment or the aggravation of an ailment.
The Respondent also cites Australian Telecommunications Commission v Treloar (1989) 11 AAR 69; 90 ALR 202 wherein Davies J found in respect of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) that the contribution had to be of a causal nature and therefore “causally significant or, to use another term, material”. His Honour’s opinion was that the new definition in the SRC Act was similar. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Court endorsed this interpretation, observing at 323 that the insertion of the word “material” served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of, and, provided the causal connection were established on the balance of probabilities, the size of the contribution did not matter.
In Comcare v Canute (2005) 148 FCR 232, 249, French and Stone JJ took issue with the application of this approach to the definition of “disease” in the SRC Act. Although their Honours accepted that a “but for” test was inappropriate, after referring to the Minister's Second Reading Speech on the introduction of the Bill which became the SRC Act, they found that “[c]ontent must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded.”
Section 5B was inserted into the SRC Act by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth). The Respondent notes that Katzmann J observed in Power at [93]:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear.
The parties’ submissions on the evidence
Applicant
The Applicant’s evidence was that there was an increased workload and gradual onset of pain in her left shoulder and elbow as a result of duties including the use of macros requiring constant use of the mouse. This resulted in the Applicant moving her arm back and forth from keyboard to the mouse constantly and the need to copy and paste information into the customer’s record which meant further clicking of the mouse within the customer’s record. Her evidence was that that pain started in January 2016 and became unbearable in April/May 2016 when she had to move her arm from the keyboard to the mouse as quickly as possible in a sideways motion. This onset and worsening of pain followed the introduction of new telephone software.
The Applicant submits that the evidence of Mr Arabi did not contradict her evidence and that the evidence of Mr Creek is of little or no probative value because he ceased to have any contact with the Applicant in June 2014.
In relation to the critical medical evidence, the Applicant submits as follows (Applicant’s closing submissions):
Dr Slinger
(a)Dr Slinger’s report recorded the Applicant’s relevant medical and work history and proceeded on the basis of the Applicant’s assertion of there being an increase in workload and change in work type over the period leading up to the onset of pain in January 2016.
(b)Dr Slinger opined that the Applicant’s symptoms and restrictions in her left shoulder and elbow were directly related to her work.
(c)Dr Slinger opined (page 5 of A4) that the Applicant’s injuries were significantly contributed to by her work. He opined that whilst the Applicant had degenerative changes at the acromioclavicular joint and tendinopathy which pre-existed the work activity, these were asymptomatic and it was the work activity which rendered these changes symptomatic.
(d)The Applicant cited two passages from the oral evidence of Dr Slinger at the hearing as follows:
The reason I made that comment is that she had radiological changes which pre-existed the injury. They were longstanding. Those changes are very common in the population at large, particularly in this... age group. But she had no symptoms. So I had to find a reason why she had those symptoms, and Ms Knox chronologically indicated that they commenced at or about – or at the time when the office was restructured. She was convinced that that was the – she thought that was the cause and I saw no reason to dissuade her from that opinion, particularly as she had continuing symptoms relating to her work activity. And those symptoms have continued to present...
(Transcript at 62)
And
She was using her left hand and she was using a mouse and a keyboard or whatever those things are called, and continually reaching forward and moving her mouse and was particularly moving the mouse, I think, and work habits of the keyboard that she attributed to her symptoms. She had a headset on so it wasn’t answering the telephone. But the fact that she was shuffling paper, effectively, and using the mouse that caused her to have these repetitive movements at the arm in general, and in particular at the shoulder which started her symptoms. She wasn’t raising her arms above her head, which is a common cause for symptoms of the shoulder, but not the only cause. And symptoms can occur at – in her shoulder at heights below the shoulder. Breast-strokers swimmers who swim breast stroke often have shoulder symptoms. Well they’re operating, obviously at shoulder height or below shoulder height...
(Transcript at 62)
Dr Cairns
(a)
In his first report dated 29 June 2017 (R7) Dr Cairns opined that the aetiology of the Applicant’s left shoulder and elbow symptoms were of a spontaneous onset.
Dr Cairns stated in this report (page 7) that his opinion in this regard was based upon the common occurrence of these conditions in the community at large, the claimant’s age, and the comorbidities of diabetes mellitus and obesity.
(b)In the Applicant’s submission the content of A7 provides no support whatsoever for the spontaneous onset conclusion proffered by Dr Cairns in his report and maintained by him in his oral evidence. The Applicant pointed to an article from the International Journal of Obesity[4] (A7 at page 215) to which Dr Cairns had referred which stated that while obesity was:
[4] Anandacoomarasamy et al, ‘The impact of obesity on the musculoskeletal system’ (2008) 32 International Journal of Obesity 211, 222.
…consistently a significant risk factor associated with the occurrence of these complaints. Obesity was also found to predict those who were likely to develop upper extremity tendonitis associated with work activity in a prospective cohort study over 5 years. In another prospective survey of upper-limb work related musculoskeletal disorders in repetitive work, obesity again increased the risk of ulnar entrapment at the elbow.
(c)
The Applicant submitted that the literature relied upon by Dr Cairns supports the proposition that somebody with the Applicant’s comorbidities is at a higher risk of developing the problems she has in the context of work activity, namely, repetitive work. The Applicant submits that Dr Cairns had omitted to properly consider the medical literature he relied upon to form his view on causation in this case.
The article cited by Dr Cairns in fact supports the conclusion that the Applicant’s work activities are likely to be implicated in the onset of her left shoulder and elbow symptoms.
(d)Dr Cairns’ report of 29 June 2017 (R7) concedes that the Applicant’s “employment … may have symptomatically exacerbated the underlying condition” (see [51] above) and that in cross-examination Dr Cairns conceded that if the symptoms of an exacerbation continue then, in medical terms, it will become an aggravation.
(e)In the Applicant’s submission Dr Cairns’ spontaneous onset theory is simply not reasonably open on the evidence before the Tribunal. The exacerbation concession made is consistent with Dr Slinger’s evidence, commonsense and also the evidence contained in Dr Floyd’s report.
Dr Floyd
(a)Dr Floyd’s report dated 28 October 2016 included a history that recorded the Applicant reporting an increase in the use of the mouse associated with the more frequent use of macros and her symptoms building up over the day and the week.
(b)The Applicant noted the following passages from Dr Floyd’s report:
In Ms Knox’s case, her work tasks are not of the type known to cause such condition but would plausibly, if as she says, in the presence of increased exposure, cause some activation of pain symptoms. (R9, T8 at 67)
…
In my opinion Ms Knox’s presentation would be in keeping with an aggravation of an underlying left shoulder impingement and tendinopathy of the common extensor origin... (R9, T8 at 68)
…
I would note however that her work tasks with repetitious actions of the left upper limb are of the type that could act to aggravate and bring on the symptoms but as such would not be causative of her condition (R9, T8 at 69)
…
The work tasks would plausibly cause some aggravation of her underlying complaint if she has had an increase in demand.
I note at the heart of this there is a workload issue which I am reliant on Ms Knox’s reports. I would note it is not uncommon to see with an increase in workload that previously asymptomatic underlying degenerative conditions can be symptomatic. As such these exposures would not cause the condition but can act to bring on symptoms.
…
The work factors, from her reports are of an increased workload, which would have acted to aggravate the underlying condition to bring on symptoms
(R9, T8 at 69)
(Footnotes omitted.)
Note: the full text of Dr Floyd’s report is set out in [48] above.
(c)The opinions expressed by Dr Floyd above are largely consistent with Dr Slinger's opinions on causation and also Dr Cairns’ conceded, yet apparently disavowed, theory that the Applicant’s work has caused asymptomatic degenerative changes to become symptomatic. In oral evidence Dr Floyd appeared to resile from the opinions expressed in his report. In the Applicant’s submission the opinions expressed in Dr Floyd’s report are likely to be reliable, particularly when taking into account the Applicant's evidence that she experienced the onset of symptoms during her work as a result of the highly repetitive use of the mouse and keyboard.
Respondent
Given the Applicant’s concession in opening that her claim now relies on her claimed injury being an injury under s 5A(1)(a) of the SRC Act, that is a disease and not an injury simpliciter, the Tribunal’s task is to determine whether the ailment suffered by the Applicant is an ailment, or the aggravation of an ailment, “contributed to, to a significant degree” by the Applicant’s employment. That is, is it a disease as defined in
s 5B(1) of the SRC Act?
The Tribunal is mindful of the direction given by the Court in Comcare v ZZRP [2019] FCA 952 wherein at [27] Flick J observed:
[27]… Comcare’s challenge to the adequacy of the reasoning of the Tribunal with respect to the manner in which it applied the statutory test to the facts as found which is well-founded. The deficiency in that reasoning process is exposed by:
·other than the reference to ss 16 and 20 of the Safety Compensation Act at the outset of the Tribunal’s reasons for decision (at para [2]), there is no exposition of the terms of those statutory provisions regulating entitlement of compensation and no attempt to apply the statutory provisions to such facts as were the subject of findings of fact. Indeed, there is no reference in the reasons to the definition of a “disease” in s 5B;
…
Although “finely nuanced differences in dictionary definitions” should not intrude into an analysis of an evaluation as to whether a disease has been contributed to by employment to a “significant degree … that is substantially more than material” (cf. Sahu-Khan) any more than a “finely nuanced” approach should be pursued on appeal as to whether the term “mainly” falls within the statutory language of “significant degree”, the difficulty with the reasoning of the Tribunal in the present case remains.
[28] In reaching this conclusion, it is the absence of any express reference to the established principles in respect to contribution and whether a disease has been contributed to a “significant degree” by employment at the ATO which occasions concern. Specifically, it raises concern at the outset as to whether the Tribunal was setting itself on the right path in identifying for itself the correct test to be applied and thereafter setting itself on the right path in applying the facts to that statutory test. The absence of any more detailed evaluation of the competing medical opinions of Drs Chow and Howard only compounds this concern.
As noted above, the joint report itself identifies the difference between the two doctors’ opinions as being caused by differences in their respective understandings of the meaning of “condition” and “causation”. While that difference is understandable and may explain the difference between the doctors’ respective opinions, and while it may be a point of semantics, the test that the Tribunal must apply is defined by the language of the legislation. The test for an injury being a disease under s 5B(1) is whether the ailment, or an aggravation of the ailment, “was contributed to, to a significant degree, by the employee’s employment”. While in a general sense that is a question that goes to the causation of the ailment, the question or questions that each of the doctors appears to be answering in the two critical parts of the joint report is not the question posed by s 5B(1)of the SRC Act. This Tribunal understands Flick J in the above judgment to be making it clear that the question to be answered on the basis of the evidence, including the medical evidence, must be the question actually posed by the legislation which, presumably, must be answered using the language of the legislation.
In that sense neither Dr Slinger nor Dr Cairns in the joint report answers, directly at least, the question that must be answered, namely, was what the Applicant suffered an ailment or an aggravation of an ailment, contributed to, to a significant degree, by the Applicant’s employment. In other words, was it a disease as that term is defined in s 5B(1) of the SRC Act. Dr Slinger’s position is stated to be that:
… were it not for the work-related activities said to have provoked the worker’s injury, there was no reasonable presumption that the injury would have occurred.
Dr Cairns’ position is summarised in the joint report as being:
…that the pathology within the applicant’s shoulders is the fundamental underlying cause of the emergence of the impairment regardless of work activities.
The difference between the doctors is further explained on page 2 of the joint report in the following terms:
Dr Slinger is of the view that the work activities undertaken by the applicant were consistent with causation of the condition whereas Dr Cairns expresses the view that they are not typical of the type of activities associated with causation of the condition.
Neither of the doctors’ opinions as stated in the joint report is addressing the relevant legal question. Are the above opinions of the doctors simply a different expression of the answer to the question posed by s 5B(1) of the SRC Act, namely did the Applicant’s employment “contribute, to a significant degree” to the ailment, or are they statements which do not answer that critical question? Are the doctors simply using their own language to answer the relevant question? As Flick J noted:
… “finely nuanced differences in dictionary definitions” should not intrude into an analysis of an evaluation as to whether a disease has been contributed to by employment to a “significant degree … that is substantially more than material”
(cf. Sahu-Khan).
The Tribunal is of the view that the respective statements by the doctors in the joint report do not answer the question that s 5B(1) of the SRC Act poses. That is not to say, however, that the opinions expressed in the joint report are not relevant in determining that issue. While the respective opinions do not directly answer the question, they do, when read with the other medical evidence and the factual evidence, provide part of the overall medical picture of the contribution that the Applicant’s employment played in the Applicant’s ailment.
Was there an aggravation of an ailment?
In looking at the answers provided by the joint report and the separate opinions provided by Doctors Slinger, Cairns and Floyd, it becomes apparent that in order to make an assessment of whether the Applicant’s employment contributed to an ailment, or an aggravation of an ailment, for the purpose of s 5B(1) of the SRC Act, there needs to be a determination of which of the differing legal views is correct. Those of the Applicant are set out in [62]-[67] and those of the Respondent are set out in [68]-[89] above. In summary that difference is whether the Applicant suffering pain when using the mouse and typing is, in itself or in combination with the underlying pathological condition suffered by the Applicant, an ailment or an aggravation of an ailment (that is a disease) or whether some more permanent or lasting change in the underlying condition is required before the Applicant could be said to be suffering from a disease for the purposes of ss 5B(1) and 5A(1)(a) of the SRC Act.
Put in simple terms, the difference between Dr Slinger on the one hand and Dr Cairns (and Dr Floyd) on the other, is that Dr Slinger considers that the pain that the Applicant suffers because of her diagnosed conditions when she moves her arm using the mouse and typing at work is an ailment or the aggravation of an ailment. That is, it is a disease for the purposes of s 5B(1) and an injury for the purposes of s 5A(1)(a) of the SRC Act. Dr Cairns (and Dr Floyd) on the other hand look at exactly the same set of circumstances and, because there is no lasting change in the Applicant’s underlying diagnosed conditions as result of her moving her arm at work, although it causes pain, their view is that there is not an aggravation of an ailment and therefore there is not an injury for the purposes of s 5A(1)(a) of the SRC Act.
At the hearing Dr Cairns said:
DR CAIRNS: …Now, the postulate here is that it’s asymptomatic, she has a condition, that’s the underlying pathology. It’s asymptomatic and Barry’s [Dr Slinger’s] view is that the work activities have provoked it. I accept the word provoke but if ]
DEPUTY PRESIDENT: Provoke the onset of symptoms.
DR CAIRNS: Provoke the symptoms, correct. Now, that provocation may turn out to be an exacerbation if the symptoms then subside back to the previous underlying condition which is asymptomatic but if it doesn’t subside back to what it was before the provocation it becomes an aggravation and then it’s permanent.
(Transcript at 71)
That difference, in effect, reflects the difference in the legal positions taken by the parties as set out in the paragraphs identified in [122] above. As set out in those paragraphs,
the Applicant’s case, relying on the cases cited, is that the onset of pain, the rendering of the underlying asymptomatic conditions symptomatic, caused by her workplace activities is an injury being either an ailment or an aggravation of an ailment contributed to, to a significant degree, by her work activities. She says that her situation is analogous to
Kitto J’s unfortunate employee in Semlitch who has salt rubbed into an open wound and that that is an aggravation of an ailment for the purposes of s 5B(1) of the SRC Act.
The Respondent, on the other hand, based on Dr Cairns’ initial characterisation of the onset of pain as being “spontaneous”, holds to the view that the Applicant’s employment had nothing to do with the onset of symptoms. The Tribunal does not accept that to be the case and in that regard prefers the evidence of Dr Slinger and the Applicant. It would seem, in any event, that by the time of the hearing Dr Cairns conceded that the work activities “provoked” the symptoms (see [124] above), however in his view that is not an injury unless there is a lasting change in the underlying condition or the symptoms persist. The Respondent argues that the Applicant’s case is analogous to the equally unfortunate employee referred to in Beattie who had pressure put on a broken leg which caused pain, and in that sense could be said to have exacerbated the injury, but will not have aggravated the injury. In those circumstances pain alone with no change in the underlying condition (ailment) is not sufficient.
The Tribunal also notes the report of Dr Floyd dated 28 October 2016 wherein he opined that “Ms Knox’s presentation would be in keeping with an aggravation of an underlying left shoulder impingement and tendinopathy of the common extensor origin” (see [48] above] and the comment in Dr Cairns’ report of 30 May 2018 that “I have expressed the opinion that while on the one hand the activities may, or may not, have exacerbated symptoms …” (see [55] above). While Dr Cairns did at the hearing qualify those statements by differentiating between “aggravation” and “exacerbation”, the Tribunal accepts that there was a causal link, a contribution, between the Applicant’s work activities and the onset of pain.
In Reardon, one of the grounds of appeal that Mortimer J had to consider was:
The Tribunal identified an incorrect legal test for determining whether there was an aggravation when it stated “A worsening or increase in symptoms of a non-work caused condition may constitute an “aggravation injury” for the purposes of the Act and it is unnecessary for a worsening of the pathology to be present” without acknowledging the important qualification that ‘it does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his [or her] injury” (Commonwealth v Beattie (1981) 53 FLR 191 at 201; 35 ALR 369 at 378).
At [30] her Honour cited the Full Court’s decision in Beattie (at 378):
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his [or her] injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.
At [31] her Honour then says:
Comcare made the repeated submission, in relation to each question of law it raised, that what occurred in 2011-2013 to Mrs Reardon at work was analogous to a worker walking on a fractured leg at work, and was not compensable because the pain and other symptoms experienced by Mrs Reardon arose only by reason of her previous, non-work-related incapacity. In general terms, I find this submission unpersuasive. I am confirmed in that view by the analysis of Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 43-4; [1998] FCA 335. Where the “experience” of an injury (including a disease) is increased or intensified, or recurs, there may be an aggravation. The experience of the injury, or the symptoms, are part of the injury. This includes pain. Finkelstein J then made the following observations about the qualification in Beattie:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
Mortimer J agreed in Reardon with the approach taken by Finkelstein J in Beattie.
The Tribunal also notes the following passages from Mortimer J’s decision in Reardon:
[38] In the next paragraph of its reasons, the Tribunal stated (at [38]):
A worsening or increase in symptoms of a non-work caused condition may constitute an “aggravation injury” for the purposes of the Act and it is unnecessary for a worsening of pathology to be present. (Citation omitted.)
[39] Comcare criticises this passage as containing a “bald assertion” which fails to recognise the qualifications Comcare submits are apparent from Beattie. As the respondent correctly submits, in fact the Tribunal uses the word “may” and in my opinion this passage, read as it should be with the passages which have gone before and which I have extracted at [36] above, demonstrates that the Tribunal understood (referring to Beattie, correctly) it needed to look for not only the requisite degree of aggravation, but also a causal rather than a temporal link with employment. Comcare’s fractured leg example is not as one-dimensional as its submissions might suggest. If, for example, a worker was required to work standing for long periods of time on a leg which had been broken (in circumstances having no connection with her employment) then depending on the evidence, there is no reason why it would not be open to the trier of fact to find there was an aggravation to the requisite degree under the SRC Act.
A similar case to the present case was considered by the tribunal in Skobelkin-Mulcair and Comcare [2019] AATA 1054 in which Member Hyman said:
[82] If the chronic pain syndrome arose constitutionally, then either the natural progression of that constitutional disorder brought it to the point of displaying symptoms, or else something exacerbated it and made it symptomatic. In the latter case it seems difficult to avoid concluding that it was employment that made it symptomatic, in the absence of any other obvious causative factor; and that in turn implies that the chronic pain syndrome is an injury under the SRC Act, as an aggravation of an existing disorder. It is well established in the case law that in workers’ compensation the pain that the employee suffers is not distinct from the injury, but part of it. In Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 (Beattie) the Full Federal Court (Evatt and Sheppard JJ) relying on Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, concluded (at 378) that:
...each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
[83] That general conclusion – that symptoms resulting from or increased by work without worsening an underlying condition can be an aggravation under the legislation – is now very well established as a matter of law: see for example Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176, where the court (Davies, Sheppard and Ryan JJ) noted (at 180) that:
It is indeed fundamental to compensation law that a symptom of an injury or a disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease.
Other cases leading to similar conclusions include Tippett and Australian Postal Corporation [1998] FCA 335; Mellor and Australian Postal Corporation [2010] AATA 502; Rutledge and Comcare [2011] AATA 865; Fletcher and Comcare [2015] AATA 430; and Comcare v Reardon [2015] FCA 1166.
This Tribunal agrees with Member Hyman’s summary of the position of the law.
The same approach was taken by the tribunal in Stefaniak and Comcare (Compensation) [2019] AATA 1866 wherein Senior Member O’Donovan observed:
64.It is well established that an aggravation of symptoms, notwithstanding that there is no alteration of the underlying pathology, may be sufficient to amount to an injury for the purposes of the SRC Act. (see Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [634]; Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 378; Tippett v Australian Postal Corporation [1998] FCA 335 at 5 (‘Tippett’); Mellor v Australian Postal Corporation & anor [2009] FCA 504 at [39] (‘Mellor’); Comcare v Reardon [2015] FCA 1166 at [31]; Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [48])
65.To determine whether the aggravation does give rise to liability it is necessary to determine whether the applicant is merely experiencing pain at work, in which case no liability arises, or whether the activities at work cause the worker to suffer pain or suffer pain more intensely. The case of Australian Postal Corporation v Bessey [2001] FCA 266 at [12] is an example in the former category. Cases such as Mellor and Tippett deal with cases which may fall into the latter.
(Footnotes omitted.)
The Respondent’s argument set out in [68]-[89] above demonstrate the potentially differing legal positions that courts and tribunals might be considered to have taken on the characterisation and legal consequences of the onset of symptoms in the context of
s 5B(1) of the SRC Act. However, this Tribunal considers that it is bound to follow the approach taken by Mortimer J in Reardon, who, in turn, was following the approach of Finkelstein J in Tippett and Beattie that in the case where a worker with a pre-existing, non-work related ailment suffers an onset of pain relating to that ailment as a result of work activities, that is an aggravation of an ailment and a disease for the purposes of
s 5B(1) of the SRC Act.
Accordingly, the Tribunal finds that it cannot accept the Respondent’s position (para. 15 of closing submissions) that the mere experience of symptoms in the workplace is insufficient to meet that definition of “aggravation” and that the workplace must make the underlying condition worse in order for it to have aggravated the underlying condition. The Tribunal is bound to follow the approach of the Federal Court which is summarised in the passage from the judgment of Finkelstein J in Beattie cited at [129] above that if a “worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely…it can be said that the worker has suffered an aggravation of his or her pre-existing injury”.
Did the Applicant’s work contribute to a significant degree to the aggravation of the Applicant’s symptoms?
Section 5B(2) of the SRC Act identifies matters that the Tribunal may take into account in determining whether an ailment or an aggravation of an ailment was contributed to, to a significant degree, by the employee’s employment (see [27] above).
(a) The duration of the employment
The Applicant has worked for DHS since 1998. As far as the evidence indicates the Applicant had not suffered any relevant symptoms until the onset of shoulder pain in January 2016 followed a month or two later by the elbow pain. That pain reached “unbearable” levels by May 2016 at which time the Applicant reported her “injury” to her team leader. Insofar as longevity is a matter to be taken into account, the fact that the Applicant had worked for DHS for around 16 years without suffering any symptoms may indicate that the onset of symptoms starting in January 2016 was not related to or contributed to, to a significant degree, by her employment. The Tribunal does accept that various changes were introduced to the workplace in the 12 months or thereabouts leading up to the onset of symptoms in January 2016 which caused an increase in the Applicant’s use of the mouse and an increase in the typing required of the Applicant.
The Tribunal understands that the Applicant runs her case on the primary argument that work had contributed to an aggravation of an ailment, not that her work had caused the underlying pathology of rotator cuff tendonitis/subacromial bursitis/impingement left shoulder and common extensor origin tendonitis/lateral epicondylitis left elbow. In any event the medical evidence would not support a finding that the underlying condition was contributed to, to a significant degree, by her employment. The medical evidence largely accepts that the underlying conditions are degenerative in nature. Where the issue is one of whether there was an aggravation rather than whether the employment has caused or contributed to a pathology, the longevity of employment is less indicative of contribution.
(b) The nature of, and particular tasks involved in, the employment
It seems not to be disputed that the Applicant started to suffer pain in operating the mouse and typing. Her evidence was that that pain built up over the working day and week as she worked. The Tribunal accepts the Applicant’s evidence in that regard. Given the Tribunal’s finding that it is bound to follow the approach taken by Finkelstein J and followed by Mortimer J (see [129] above), the fact is that irrespective of the longevity of the Applicant’s employment or other factors, the physical movements that she made at work caused her to suffer the onset of symptoms. As the Tribunal is primarily considering whether the work activities contributed to the onset of symptoms, this consideration falls in favour of the employment being treated as having contributed, to a significant degree, to the aggravation of the ailment. In effect the hand and arm movements associated with the Applicant’s work were the proximate cause of the pain even if the “root cause” of the pain was the Applicant’s underlying ailment.
(c) Any predisposition of the employee to the ailment or aggravation
This consideration is probably of little relevance given that it appears not to be disputed that the Applicant’s underlying condition is a degenerative condition. In that sense she had a pre-disposition to an aggravation of the condition if one treats the triggering of symptoms (pain) relating to the underlying pathology as being an aggravation of an ailment.
(d) Any activities of the employee not related to the employment
No evidence was presented that would suggest that activities outside work caused the onset of the symptoms.
(e) Any other matters affecting the employee’s health
There was evidence that the Applicant had suffered neck pains following a motor vehicle accident in 1998 (Dr Cairns’ report R5 at page 2) and that the Applicant had
“co-morbidities of an apparent systemic musculoskeletal inflammatory diathesis, diagnosed type 2 diabetes, obesity, and the unexplored family history of gout (father)” (Dr Cairns’ report R5 at page 6). Dr Slinger’s evidence at the hearing was that he did not place any “orthopaedic significance” on the Applicant’s type 2 diabetes. His view is that it is irrelevant to her relevant condition and noted that he himself has Type 2 diabetes but does not have any shoulder problems and also thought that the Applicant’s obesity was irrelevant to the condition of her shoulder (Transcript at 64).
Dr Cairns’ evidence was:
MR MORRISSEY: And in this case if you don’t have another cause for the onset of the symptoms but you have repetitive use of the left upper limb, surely that’s something that can cause the onset of symptoms?
DR CAIRNS: Not when there are other factors in the background that explain the cause of the onset of the symptoms, the pathology, diabetes, obesity, a number of factors at play in this particular individual.
MR MORRISSEY: On that point, it’s my understanding that you placed some weight on the existence of comorbidities ---
DR CAIRNS: Correct.
MR MORRISSEY: --- as to the onset of the shoulder symptoms?
DR CAIRNS: Correct.
(Transcript at 80)
…
DR CAIRNS: Well, I believe somewhere in the report I refer to obesity and that’s on the basis that there are emerging, or there is emerging evidence of chemical moderators of inflammation called atomocydicines [sic] which are identified as provocative or potentially provocative factors in inflammatory disorders and the musculoskeletal system and I note that in the document that I’ve been handed in the reference and comments of risk factors on page 325 there is a reference at the bottom of the page to diabetes. I do admit that it makes specific reference to type 1 diabetes, I also concede that there is not a lot of reference to it in the literature but my personal experience, and despite Barry’s observation is that patients who develop inflammatory disorders such as lateral epicondylitis or tennis elbow or rotator cuff tendonitis, Achilles tendonitis, plantar fasciitis, my experience has been that they tend to be more common in diabetes both type 1 and type 2 and they are more resistant to treatment in terms of using the usual treatment modalities. So there is some support for that within the literature, I don’t – can’t cite it straight off the top of my head but that’s my personal knowledge and experience and the relationship with that factor in this particular instance.
(Transcript at 85-86)
Certainly on Dr Cairns’ evidence and, it appears, in the material to which Dr Cairns referred, there is some medical support for conditions such as those suffered by the Applicant being associated with diabetes and obesity.
In the end, however, irrespective of whether there may have been other factors which may have contributed to the Applicant’s underlying medical conditions, the issue is whether her employment, the work that she was doing, contributed, to a significant degree, to the ailment or the aggravation of the ailment. In the present case the relevant question is whether the Applicant’s work contributed to the required degree to “provoke the symptoms”, to use Dr Cairns’ language (see [124] above) or, to use Finkelstein J’s language from Beattie (see [129] above), whether “… it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely”.
The evidence, particularly the largely undisputed evidence of the Applicant, establishes to the satisfaction of the Tribunal that, on the balance of probabilities, the work activities of the Applicant, particularly her use of the mouse and the typing caused the onset of the pain. While it is the case that without the underlying medical conditions of rotator cuff tendonitis/subacromial bursitis/impingement left shoulder and common extensor origin tendonitis/lateral epicondylitis left elbow the physical movements made by the Applicant in undertaking her work would probably not have caused pain, that is not the relevant test. The test is whether the physical movements in her carrying out her work contributed to the pain that she suffered. The answer to that question is that it did.
Was the contribution to a significant degree?
The Respondent’s out in [85]-[89] above. The Applicant made no specific submissions on this issue. The Tribunal agrees with the Respondent’s submissions in relation to the meaning of the term “a significant degree” are set summation of the law set out in the aforementioned paragraphs. The Tribunal is satisfied that the onset of pain suffered by the Applicant was caused by the work activities in that it was those work activities that significantly contributed to the asymptomatic underlying condition becoming symptomatic. As much was accepted by Dr Cairns (see [125] above). The Applicant’s work was more than a trivial contributor, it was the proximate cause of the onset of the symptoms. It therefore, in the Tribunal’s view, reaches the level of contribution described by the Federal Court in Power that it was “substantially more than…one which is trivial” (see [85] above).
Accordingly, the Tribunal finds that the Applicant suffered an aggravation of an ailment which is a disease and an injury under s 5A(1)(a) of the SRC Act.
CONCLUSION
For the reasons set out above, the Tribunal finds that:
(a)for the purposes of s 5B of the SRC Act, the Applicant suffered a disease being an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment; and
(b)for the purposes of s 5A(1) of the SRC Act, the Applicant suffered an injury being a disease as defined in s 5B of the SRC Act.
DECISION
The Tribunal orders that:
(a)the reviewable decision be set aside and that the matter be remitted to the Respondent for reconsideration with the direction that the symptoms suffered by the Applicant from January to May 2016 in her left shoulder and elbow associated with the Applicant’s conditions of rotator cuff tendonitis/subacromial bursitis/impingement left shoulder and common extensor origin tendonitis/lateral epicondylitis left elbow and any continuation of those symptoms were an injury for the purposes of s 14 of the SRC Act; and
(b)the Respondent pay the costs of these proceedings incurred by the Applicant.
I certify that the preceding 151 (one hundred and fifty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
....[sgd]...................................................................
Associate
Dated: 24 July 2019
Date(s) of hearing: 11, 12 and 13 March 2019 Counsel for the Applicant: M N Morrissey Counsel for the Respondent: Ms J Henderson
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