Kortum and Comcare
[2003] AATA 1283
•16 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1283
ADMINISTRATIVE APPEALS TRIBUNAL N°V2002/214
N°V2002/971GENERAL ADMINISTRATIVE DIVISION N°V2003/302
Re: GARY ROBERT KORTUM
Applicant
And: COMCARE
Respondent
DECISION
Tribunal: M.J. Carstairs, Member
Date: 16 December 2003
Place: Melbourne
Decision:The Tribunal sets aside the reviewable decisions dated 18 February 2002 and 20 March 2002 and substitutes the decision that:
1.the applicant suffered a ganglion and flexor tenosynovitis of the right middle finger in or about October 2001, in the course of his employment; and
2.the applicant is entitled to compensation under s16 and s19 of the Safety, Rehabilitation and Compensation Act1988 until 10 December 2001, including for the surgery to the finger conducted on 27 November 2001.
The Tribunal affirms the reviewable decision dated 12 March 2003, affirming the determination dated 5 December 2002.
(sgd) M.J. Carstairs
Member
COMPENSATION – keyboard work ‑ injury to right middle finger ‑ whether arose out of or in the course of employment
Safety, Rehabilitation and Compensation Act 1988 s4, s14, and s16
Dahl v Grice [1981] VR 513
REASONS FOR DECISION
16 December 2003 M.J. Carstairs, Member
1. This is an application by Gary Robert Kortum (the applicant) for review of reviewable decisions made by a delegate of Comcare (the respondent) in relation to an injury to the applicant’s right middle finger.
2. The applicant represented himself at the hearing. Ms A. McMahon of counsel, instructed by the Australian Government Solicitor, represented the respondent.
3. The Tribunal had before it the documents labelled T1‑T50, lodged under s37 of the Administrative Appeals Tribunal Act 1975, as well as exhibits marked A1‑A19 for the applicant and R1‑R11 for the respondent.
BACKGROUND
4. The applicant was born on 8 October 1952. He has a Bachelor of Commerce degree from the University of Melbourne and a Graduate Diploma in Advanced Taxation from the University of New South Wales. He has worked for the Australian Taxation Office (the ATO) for two periods. The first period commenced on 31 January 1978 and ended on 6 August 1999, with him taking a voluntary redundancy. At the time he suffered from Crohn’s disease. He underwent surgery for that condition in February 1999. He retired shortly after this, having reached the level of Administrative Service Officer Class 6 in the ATO, auditing complex matters pertaining to large businesses. The second period of employment with the ATO commenced in January 2001 when the applicant took up a position at the level of Administrative Service Officer Class 3 in the ATO Small Business Call Centre in Brisbane. In August 2001 he was transferred, at his request, to a call centre in Melbourne. In this second period he worked four eight‑and‑a‑half hour days per week.
5. On 31 October 2001 the applicant lodged a claim for compensation for a medical condition, which he described as swelling and joint pain due to repetitive movements in keyboard tasks. He claimed that the symptoms had been present for the previous four to six weeks.
6. In a decision dated 22 November 2001, the respondent’s delegate accepted the claim that sprains and strains of finger (right) were work related, and decided that the applicant should be paid one day’s leave for 29 October 2001, as well as medical expenses until 21 November 2001. However, the claim for costs of surgery to the finger was rejected. The applicant‘s hand surgeon, Mr P. Slattery, had sought approval prior to surgery being conducted on 27 November 2001. A reviewable decision dated 18 February 2002 (T23) affirmed the decision denying liability for the surgery. A reviewable decision dated 20 March 2002 (T26), on the respondent’s own motion, set aside the original decision accepting liability for the finger injury, and substituted a decision that the injury was not work‑related.
7. The applicant did not return to work after the surgery, until August 2002. On 14 October 2002 he made a further claim for compensation in regard to inflammation and pain in the area of the A1 pulley of the right middle finger. This claim was rejected, the reviewable decision being dated 12 March 2003.
8. The applicant sought review by the Tribunal of the various decisions, all relating to his right hand and finger, on 1 March 2002, 11 September 2002 and 20 March 2003. The issues before the Tribunal are whether the applicant has suffered injury within the meaning of the legislation and whether he is entitled to compensation.
EVIDENCE
9. The applicant said that in the ATO call centre he keyed information on a computer keyboard using only the middle fingers of both hands. He said that he used his right middle finger to carry out 80 to 90 per cent of the keying. This was because he was frequently entering numerical data such as Tax File Numbers (TFNs) and Australian Business Numbers (ABNs) that required using the numeric keypad on the right side of the keyboard. He said that he was keying continuously, eight hours per day. Various medical reports evidenced that the applicant also told medical practitioners that he keyed for eight hours each day.
10. In oral evidence the applicant described in detail the computer activities that might occur in the course of a telephone call from an ATO customer and follow‑up procedures. The tasks might include data entry, accessing computerised resource materials to answer ATO customer queries, and entering follow‑up notes to the calls on the computer system. The applicant said that calls averaged three to four minutes, with a 15‑second delay between calls and that call centre staff averaged 50 to 70 calls each, per day. He acknowledged that the ATO call centre practice required staff to take hourly breaks but he said that in over 22 years working for the ATO he had never experienced the level of keyboard duties as was required in the call centres. He said that the Melbourne call centre was more demanding than in Brisbane, where he dealt with personal taxation. In the Melbourne call centre he dealt with taxation of businesses and said that as a result of the Goods and Services Tax requirements there was more numeric data to be keyed in after these calls.
11. The applicant disputed the respondent’s claim in its statement of facts and contentions (Exhibit R2), that he did not perform repetitive work or excessive keying.. He referred the Tribunal to a report dated 5 September 2002 (Exhibit A4) prepared by Ms F. Cadd. Ms Cadd was the rehabilitation case manager when the applicant returned to work in August 2002. Based on statistics contained in Ms Cadd’s report, the applicant estimated that he was making 20,000 or 30,000 keystrokes per day. In the report Ms Cadd said:
…I don’t see that his current work environment provides for repetitive keystrokes…
·Each phone call lasted between 5‑7 minutes.
·There are on average 155 individual key strokes and on average 22 mouse clicks
·The number of keyboard touches ranged from 16 for one basic call to 569 touches for a call that required a note on the system.
…
12. The applicant said that he recalled suffering cramps in his hands while working in Brisbane, but they were not as frequent as in Melbourne. He had given a history of developing joint pain and cramp‑like pains in his fingers after having Crohn’s disease to Mr J. Guest, surgeon, on 27 May 1999 (T40). The applicant said, however, that the pain and cramping that he experienced in 1999 was different from the pain and cramping in 2001.
13. The applicant said that he went to his general practitioner Dr I. Elnazak in October 2001 when his right middle finger was twice the size of his left. He said that he commenced having problems with his right hand, mostly at night, in September 2001. He had observed swelling and tightness in the right middle finger in about mid‑September, when he went to Dr Elnazak in October the finger was turning a blackish colour. The applicant said that Dr Elnazak told him that he was at risk of losing the finger. Dr Elnazak prescribed anti‑inflammatory medication, however there was no observable improvement. He then referred the applicant to Mr Slattery, and the surgery was completed on 27 November 2001. Ten days after the surgery, the stitches were removed, the hand having been bandaged till then. The applicant said Dr Elnazak later recommended physiotherapy to improve mobility, but the respondent refused to pay for this.
14. The applicant said that after the surgery he had gone back to work on four separate occasions with various medical reports, asking to be given alternate work to do and each time was told by the ATO that there was nothing that they could offer him. He said that they told him there was no non‑keyboard work. The applicant said that he then spent several months at home on unpaid leave, until he lodged a grievance, and later complained to his Member of Parliament.
15. The Tribunal had the evidence before it of the outcome of the applicant's grievance application, concerning the management of his return to work after the surgery. In a report dated 21 March 2003 (Exhibit A15) Mr M. Rush, delegate of the Merit Protection Commissioner, concluded that the applicant’s medical redeployment was not handled well by the ATO. He returned to work in August 2002, the applicant stating that this was as a result of his complaints to the Merit Protection Commissioner and his Member of Parliament.
16. The applicant was placed on a graduated return to work plan, which involved the first three weeks in refresher training, in which he was keying in data and taking telephone calls in tandem with another ATO officer. His medical certificates limited keying to no more than two hours per day. He said he went to see a specialist on 2 October 2002 as the right middle finger was noticeably swollen.
17. The applicant was cross‑examined in regard to a medical questionnaire completed about the time of his re‑employment by the ATO in January 2001 (T45), in particular about answers denying that he received invalidity benefits from the Commonwealth Superannuation Scheme and denying periods off work. On both issues he acknowledged that the answers he gave were incorrect. In regard to an answer denying previous back or neck pain, he said that a doctor had completed that part of the form, and he only signed it.
18. Under cross‑examination the applicant agreed that he believes that he should be offered a position at a higher level than his position in the call centre because of his qualifications and past experience in the ATO.
19. Medical certificates dated 29 October 2001, 5 November 2001 and 20 November 2001 (T27), provided by the applicant’s general practitioners prior to the surgery in 2001, state (in essentially identical terms):
…pain & cramps in hand joints x few months worse in last 4-6 weeks…swelling & jt pain due to repetitive movements – mainly on the Rt middle finger. likely muscular strain…
On 18 March 2002 (Exhibit R3) Dr Elnazak certified that the applicant was unable to perform activity that involved the repetitive use of his right middle finger. In a Work Cover certificate of capacity issued on 11 October 2002 (Exhibit A6) Dr Elnazak stated that the applicant was limited to a maximum of two hours keying per day.
20. In an ultrasound of the right little (sic) finger dated 8 November 2001 (T5) a Subcutaneous collection not associated with tenosynovitis or foreign body was noted. A further ultrasound dated 16 November 2001 (T8) concluded that the likely diagnosis was of an inflammatory mass, though there appeared to be tendinopathy, which means that some disease of the tendon was presumed.
21. In a letter addressed to the respondent dated 9 November 2001 (T6) Dr Slattery stated that the applicant had a work related infection of the right middle finger, which required urgent exploratory surgery. A histopathology report completed after the surgery (T11), revealed a possible cyst arising from the tendon sheath and overlying skin, but concluded with a diagnosis of non‑specific fibrosis of the right middle finger. In a report dated 4 February 2002 (T21) Mr Slattery said that diagnosis was uncertain, but that it was likely to be an inflamed synovial cyst in the flexor tendon sheath. Mr Slattery said that the applicant gave a history of months of cramping sensations in the right hand and that the right middle finger became swollen a month before the surgery. Mr Slattery said the applicant told him that he squeezed pus from a small wound at the base of the finger. Mr Slattery concluded in that report that there was no evidence of more widespread flexor tenosynovitis (an inflammation of the tendon sheath), and no evidence of a foreign body or other pathology. He said that the applicant had told him on 11 December 2001 that he had returned to work satisfactorily. Mr Slattery considered that the applicant did not need to take any precautions at work, and he concluded that the applicant was cured.
22. In a further report dated 26 February 2002 (T24) Mr Slattery said that it was likely that the applicant had two conditions in October 2001, a small soft tissue lump and a low‑grade flexor tenosynovitis; the latter related to his employment. He noted that, having reviewed the applicant on 26 February 2002, full movement of the finger had not been regained and physiotherapy was likely to assist.
23. In a written report dated 28 May 2002 (Exhibit R1) Mr J. Buntine, hand surgeon, stated that he had first examined the applicant in May 2002. Mr Buntine said that physical examination of the applicant did not reveal evidence of significant abnormality of physical origin affecting the right hand. The applicant demonstrated limited flexion of the middle finger but flexed the finger more fully when persuaded to do so. Mr Buntine said that from the beginning it seemed that abnormal illness behaviour affected the applicant’s presentation. In oral evidence he described abnormal illness behaviour as a person becoming preoccupied with an apparent physical complaint and reacting excessively to minor discomforts that would not be significant to another person.
24. Mr Buntine said that the applicant told him that from late August or early September 2001, he had been troubled by cramps followed by swelling of the right middle finger some four weeks later. Mr Buntine said (Exhibit R1) that he agreed that the respondent was correct to refuse to pay for the surgery, as there was no objective evidence of a work‑related condition affecting the right hand. He referred to the applicant’s condition of Crohn’s disease being a known cause of chronic local inflammation. However, in oral evidence Mr Buntine said that he agreed with Mr Slattery that the applicant was experiencing two inter‑related problems in November 2001. The first was a degree of tenosynovitis (or inflammation of the tendon sheath), and the second was a cyst or ganglion arising from the fibrous flexor sheath, as a result of irritation causing excessive production of lubricating fluid. He acknowledged that tenosynovitis can arise from or be aggravated by repetitive keying, though it can also arise spontaneously.
25. Mr Buntine said that he was more inclined than was Mr Slattery to consider that the condition of the applicant‘s hand was work‑related. He said that in his view the cyst or ganglion was possibly work‑related, as the ganglion and the tenosynovitis were related to each other. He said that he could not be certain but thought it was a possibility (later saying it was likely) that both conditions were work‑related. He acknowledged this view depended on whether the applicant was doing excessive and strenuous keying. He said the effects that might arise from keying were related more to the frequency of the action of the finger than any force applied. He pointed out that in relying on only one finger to type, the applicant used that finger more than if the load was spread between all fingers.
26. In oral evidence Mr Buntine said that he considered that the surgery performed by Mr Slattery in 2001 was the correct course where a person presents with a lump and the nature of the problem is unclear. He said opening up the area and excising material for microscopic investigation was appropriate. Mr Buntine said that activity should not be restricted after surgery, as better recovery will occur if a person works normally. It was his view that the applicant was able to work a short time after the surgery in November 2001.
27. In a report dated 13 December 2002 (Exhibit R5) Mr Buntine said that the applicant had told him he returned to work in August 2002, undertaking two hours of keying per day, and that he was attending a physiotherapist. The applicant told Mr Buntine that the finger was sore all the time even though he was keying for 15 to 20‑minute sessions only. Mr Buntine said that on examination, as before, he could find no objective evidence of significant abnormality of the right hand and the keratin of the palms and development of the small muscles suggested that the right hand was used as much as the left. He found no evidence of lessened use of the right hand or the right finger, as would be the case if the applicant had the problems he described. He said that while the applicant complained of tenderness when the base of the fibrous flexor sheath was pressed, there was no evidence of lessened use of the overlying skin. In oral evidence Mr Buntine said that he considered that the applicant had full passive movement of the hand. Mr Buntine concluded that the applicant exaggerates his complaints.
28. Mr Buntine acknowledged that scarring as a result of surgery might lead to stenosing tenosynovitis. He said he thought that the applicant might have some mild triggering of the finger (where a finger will remain slightly bent when unclenching the fist) due to stenosing tenosynovitis, which was quite possibly work‑related. Mr Buntine said that he did not see the need for treatment of mild triggering and he thought that the surgical release suggested by Mr N. Houseman (Exhibit A5) was not appropriate. He noted generally that Mr Houseman’s comments in his reports (Exhibits A1 and A5) were cautious.
29. In reports dated 30 January 2002 (Exhibit A8) and 27 May 2002 (Exhibit A9) Dr B. Trifiletti, consultant occupational physician, said that as the case was complex and medical views were divergent, caution should be exercised in deciding what work the applicant could undertake. She noted that the applicant was unable to make a fist with his right hand but she observed him as having a greater range of movement while writing or holding a business card. Dr Trifiletti’s reports added little, as she acknowledged that the underlying condition was unclear and that she needed further reports from the treating doctors.
30. In a report dated 3 June 2002 (Exhibit A1) Mr Houseman, plastic and reconstructive surgeon, recorded that the applicant had a change of work duties at the Australian Taxation Office eighteen months ago which involved more typing, particular two fingered key stroking. He then stated that it appears that Gary’s injury to his right middle finger has been aggravated or caused by his employment duties involving constant keyboard entry at the Australian Taxation Office. In a further report dated 4 October 2002 (Exhibit A5) Mr Houseman said that the applicant had some focal tenderness isolated to the A1 pulley of his right middle finger. He said:
…
It appears to me that he has some mild trigger of the region with no history of any locking. I took liberty of putting some Kenacort A10 into the region of the flexor sheath, which may result in some improvement, if indeed the problem is related to triggering…
31. In a report dated 4 November 2002 (Exhibit A13) Dr S. O’Loughlin, consultant orthopaedic surgeon, stated that the applicant was not able to actively extend his index, middle, ring, and little fingers. However, Dr O’Loughlin was able to passively extend these fingers fully. He said that the applicant was 10 to15 degrees short of full flexion of the palm. There was no nodule or tendon thickening of the right middle finger and no evidence of triggering. Dr O’Loughlin concluded that the applicant had experienced a definite tendonitis or tenosynovitis that resulted from excessive and strenuous keying. He said that an injury of the kind the applicant had in 2001 can result in mild inflammatory reactions around the tendons and any surgery on the tendon sheath can result in minor restrictive scarring. He agreed with the work restriction of keying in no more than two hours per day, and said the applicant needed typing training to distribute the workload to other fingers.
32. In a written report dated 14 December 2001 (T48), Mr C. Fitzgerald, consultant ergonomist, reported:
…
With regard to Mr. Kortum’s recovery he reported that his right middle finger injury had fully recovered (even though he was still wearing a dressing and an elastic bandage that was wrapped around the hand)…
Nevertheless Mr Fitzgerald suggested a conservative approach should be taken to the applicant’s return to work. He referred to a report in which Dr E. Modi stated that the applicant could be engaged in work that involved less than four hours per day of keying. Mr Fitzgerald considered this a high level of work and suggested keying should be limited to one to two hours per day.
33. In a statement dated 9 November 2001 (T7) Ms N. Moretti, a call centre manager at the ATO, noted that the applicant was slow in keying in and navigating through computer systems and used only his index fingers to enter data on a keyboard. Ms M. Damschke, team coach at the ATO, prepared a written report dated 8 February 2002 (T22) and gave oral evidence. She stated that the applicant keyed using his index fingers. She said that the applicant was very slow at typing and she had occasion to discuss this with him, encouraging him to use all fingers. She said that the work at the call centre involved minimal keying. Ms Damschke confirmed that no‑one at the call centre undertook keying duties for eight hours a day and estimated an average of about 44 minutes keying spread throughout a day.
34. Ms Damschke said that when the applicant came to her to discuss his return to work after the surgery in 2001, she had asked him if he could undertake work with his left hand, and the applicant said that he did not know. She then asked him to check with his doctor, and the applicant later telephoned and said that he could not key with his left hand.
35. Mr J. Kirko, team leader at the ATO, gave oral evidence similar to that of Ms Damschke in regard to call centre practice and procedure. He said that in meetings about his return to work the applicant consistently said that the call centre work involved repetitive typing, a view with which Mr Kirko did not agree. Mr Kirko said that the systems require little keyboard work, and are mainly mouse‑based operations. He confirmed evidence given by Ms Damschke that the need to key data was reduced by the use of macros, techniques of cutting and pasting in documents, and the use of the software system NoteWriter. He also said that, in many instances, only generic information is required without the need to enter any data. Mr Kirko agreed that no one at the ATO call centres keys for eight hours per day. He estimated the average call as seven minutes in length, and that most staff would take an average 30 to 50 calls a day. He said that when he returned to work in 2002 the applicant’s call average was eight calls per day. The return to work program was that he was on calls for 15 minutes followed by a 30‑minute break. Mr Kirko said that in September 2002 the applicant told him that the finger was infected again, but in the time since his return in August 2002 the applicant had not been doing repetitive keying in work.
36. Mr Kirko said that the applicant’s medical certificates stated that he could key for up to two hours a day, and the return to work program adhered to this. He said, however that the applicant did not comply and Mr Kirko issued the applicant with a direction to do so. He said that Mr Kortum was offered typing courses but did not take up the offer. Mr Kirko said that the applicant was adamant that the ATO find him alternative work. However, when the applicant was offered a position at Box Hill he refused to take it. Mr Kirko said that he was aware that the applicant was applying for other positions in the audit area of the ATO and was typing his own applications for those positions.
CONSIDERATION OF ISSUES
37. The liability of the Commonwealth to pay compensation in respect of employees is provided for in s14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), which provides:
14(1) 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.
Section 4(1) of the Act defines injury as:
…
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
38. Section 4(1) of the Act defines disease as:
…
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
39. The applicant submitted that the medical evidence supported his entitlement to compensation. He pointed to Mr Slattery’s report dated 26 February 2002 (T24) that the conditions were a ganglion and low‑grade tenosynovitis and Mr Slattery’s conclusion that the tenosynovitis was work-related. He submitted that Mr Buntine’s oral evidence confirmed that both the ganglion and the tenosynovitis were work‑related. Mr Kortum said that as a result of his keying with one finger only, more stress is placed on the right middle finger. He said that Dr O’Loughlin also confirmed that excessive and strenuous keying can result in fluid building up in the tendon sheath and that surgery can result in minor scarring.
40. The applicant said that Mr Slattery had told the ATO about the urgent need for surgery. He said that the ATO unreasonably opposed his claim. He said his decision to proceed with the surgery under his private health cover was a costly decision for him and he remained without work for many months.
41. In regard to issues raised about his credibility, the applicant said that he had answered questions as fully and honestly as he could. He said that his work performance over twenty years had never been an issue and he had reached senior positions in the ATO in the past. He said that but for contracting Crohn’s disease he would have been promoted higher in the ATO.
42. Ms McMahon submitted that there were two issues in regard to the injury in 2001: that of causation and whether any incapacity is work-related. In regard to the claimed further injury in 2002 she said the issue turned on aggravation. Underpinning all these issues, she submitted, was the question of the applicant’s credit. She said that the Tribunal should be satisfied that, taking into account the applicant’s failure to fully disclose previous medical problems and other circumstances surrounding the applicant’s re‑employment in his second period with the ATO, that he had been less than honest. She said that the applicant had given inconsistent histories to medical practitioners and to the Tribunal about the cramps in his hand, about returning to work after the surgery and about whether he was taking medication for his Crohn’s disease. She said that the applicant’s evidence that the finger was turning black, and that he risked losing the finger was unsupported by medical evidence.
43. Ms McMahon said that the applicant had misled doctors when he repeatedly told them that he was engaged in constant keyboard work for eight hours per day. She submitted that the Tribunal could be satisfied on the evidence that, in the periods from August to October 2001 and from August to September 2002, the applicant was undertaking minimal keyboard duties. She submitted that the conclusions of the doctors were formed after he gave a misleading history that he was engaged in constant keyboard work for eight hours per day. Ms McMahon said the Tribunal should prefer the evidence of Ms Damshcke and Mr Kirko that the applicant did little keyboard work, and in the period from August to October 2001 there were many days in which he did not attend work.
44. Ms McMahon said that the applicant had a strong sense of entitlement about the compensation and about his right to hold a higher level position in the ATO. She said that after the surgery the applicant did not want to work, and his behaviour reflected an attitude that he should be allowed to return to the kind of work that he wanted to do, which was not in a call centre. She said that the Tribunal should accept the evidence from Mr Fitzgerald that the applicant told him in December 2001 that his injury had resolved, and therefore the reason that the applicant did not return to work was a matter of his own choice. Ms McMahon submitted that once Mr Slattery told the applicant that there were no restrictions on returning to work, the applicant went elsewhere for medical advice. She submitted that the applicant resisted offers of training which would enable him to do keyboard work with the other fingers and resisted attempts to place him in other work locations. Ms McMahon said that the applicant’s behaviour in not returning to work in 2001 was retaliation against the respondent’s refusal of his claim.
45. Ms McMahon submitted that Mr Slattery expressed no more than a possibility that the injury in 2001 was work related. She said the applicant's actions in telling Mr Slattery that the injury was work‑related would have influenced Mr Slattery to that view in his reports. She said that post‑operatively, Mr Slattery diagnosed only an inflamed synovial cyst with no evidence of more general tenosynovitis. She submitted that Mr Buntine’s evidence also went no further than simply raising the possibility that the amount of keying work the applicant was doing played a role in the injury to his finger. Mr Buntine’s evidence was that such injury can arise spontaneously, and was uncommonly a result of repetitive typing. She submitted that if the Tribunal accepted that there was some contribution from work, then aggravation was minimal and resulted in two days’ incapacity after the surgery.
46. The Tribunal reached its decision taking into account the oral and written evidence and the submissions at the hearing. The Tribunal noted that certain documents and evidence referred to the applicant keying with his index fingers. However, the Tribunal accepts that the applicant used only his middle fingers. The Tribunal also accepts that, in his duties at the call centre in 2001, the applicant used his right middle finger more than his left because of the positioning of the numeric keypad on the right side of the keyboard.
47. The Tribunal took into account that the applicant had frequent absences after he commenced work in Melbourne in August 2001. However, the Tribunal accepted the applicant’s evidence that he found the work of the Melbourne call centre required more keying than did the work at the call centre in Brisbane. The Tribunal also accepted his evidence that he had been experiencing cramping over a period of weeks before the finger flared up. The applicant’s evidence about prior cramping was supported by his reports to his general practitioners, and the reference, in his claim dated 24 October 2001, that the problem had been progressive over the previous four to six weeks. While the applicant may have been slow in his work at that time, as suggested by the evidence of Ms Moretti, there was little evidence to suggest that, on the days that he was there, he was not performing to his capacity, a full load of call centre duties. The Tribunal is satisfied that the increased amount of keying at Melbourne led to injury to the right middle finger.
48. The medical evidence at the time of the surgery in November 2001 shows that doctors were having difficulty identifying the nature of the applicant’s finger problem. There was swelling present, confirmed by Ms Damschke's observation of the finger on October 2001, and further confirmed in the medical certificates at T27. There is no question that the finger was injured. The question is ‑ was it related to work? Mr Slattery first thought that the injury was an infection, though he ruled this out after the surgery. He concluded in his report dated 26 February 2002 that the flexor tenosynovitis, one of the two conditions that he noted in the applicant’s hand, was related to employment. This was consistent with his earlier report where he said that there was no evidence of a more widespread flexor tenosynovitis, which the Tribunal understood as meaning that the flexor tenosynovitis was confined to that finger, and not that Mr Buntine was saying that no flexor tenosynovitis was present. It can be inferred that Mr Slattery did not think that the cyst or soft tissue lump (the second condition he identified) was related to employment.
49. The Tribunal notes that Mr Buntine expressed agreement with Mr Slattery about the relationship of the tenosynovitis to the applicant’s work, but he went further to say that the ganglion identified by Mr Slattery was also related to the applicant’s employment. The Tribunal accepted the evidence of Mr Buntine, that in undertaking keyboard work in an unusual way, the applicant placed a greater load on his right middle finger. Although Mr Buntine expressed many of his views using the language of possibility, the Tribunal was satisfied on all the evidence that more likely than not the injury to the applicant’s finger was related to his work: Dahl v Grice [1981] VR 513.
50. The Tribunal therefore is reasonably satisfied, on the basis of the evidence of Mr Slattery and Mr Buntine, taken with the applicant’s evidence that he was doing more keying work in Melbourne, that there was the required connection between the injury and the applicant’s employment. There was material before the Tribunal that suggested that the applicant’s earlier condition of Crohn’s disease may have made him more prone to problems in his joints. Whether the injury in October 2001 is viewed as an aggravation of an underlying condition, or an injury without that predisposing history, the Tribunal was satisfied that the connection with the applicant’s work is established. The Tribunal accepts the evidence of Mr Buntine that the surgery undertaken by Mr Slattery was the correct procedure in a course of treatment that involved identifying the nature of the problem. The claim insofar as it relates to medical costs associated with the surgery should be allowed. It follows, from this, that the reviewable decisions dated 18 February 2002 and 20 March 2002 should be set aside.
THE CLAIM IN 2002
51. The Tribunal is satisfied on the basis of the reports of Mr Slattery (4 and 26 February 2002) that the surgery was successful and that the applicant had recovered by about 11 December 2001, subject to his view expressed in February 2002 that some restriction of movement might be assisted with physiotherapy. As the treating hand specialist, Mr Slattery was in the best position to determine this. Other specialists saw the applicant later.
52. The Tribunal heard evidence from the applicant over a number of days. This evidence included matters that the applicant did and did not disclose in regard to his past medical history when taking up his second period of employment with the ATO. It included material about the amount of keyboard work that he was doing at the Melbourne call centre between August and October 2001 and between August and September 2002. The evidence also canvassed the applicant’s comments to doctors, especially those in relation to the amount of keying involved in his job. The Tribunal was satisfied that the applicant exaggerated to doctors the hours and the nature of his work.
53. In giving evidence at the hearing the applicant was frequently evasive. His evidence at many places was inconsistent with the medical histories recorded by doctors and health professionals who dealt with his case. It was clear from his evidence that the applicant was angry that his claim had been refused in 2001. The respondent submitted that the applicant had a clear sense of his own entitlement, both to compensation and to a job more fitting to his qualifications than the call centre work. The Tribunal agrees with that submission.
54. The Tribunal accepts the evidence of Ms Damschke that she asked the applicant to check with his doctor if could he do keying work with his left hand, when he returned after the surgery. On the basis of the medical reports of Dr Elnazak, Mr Ireland and others, there was no medical restriction on the applicant preventing him using his left hand, if he had wanted to do so. The Tribunal agrees with Mr Buntine that it would be an easy matter for the applicant, if he were seriously interested in returning to work, to use his index fingers. The Tribunal accepts the respondent’s submission that having been denied compensation for his injury and having an interest in ensuring that he obtained the work that he considered more suitable to his skills, the applicant made no serious attempt to return to work. Clearly there was fault on both sides concerning the applicant's redeployment after the surgery, as the findings of the delegate of the Merit Protection Commission confirm. However these issues have been dealt with elsewhere.
55. In regard to the claim made on 14 October 2002 for inflammation and pain in the area of the A1 pulley of the right middle finger, the Tribunal is not satisfied that the applicant established that he had such injury. The Tribunal takes into account the certificate of Dr Elnazak dated 11 October 2002 (Exhibit A6), which said (R) middle trigger finger as diagnosed by Mr Nicholas Houseman (plastic surgeon). However, Dr Houseman says no more than it appears to me that he has some mild trigger… Dr O’Loughlin said that there was no evidence of any triggering. Dr Buntine speculated on a range of possibilities but settled on none firmly. He did not support the finding of focal tenderness at the A1 pulley, stating this to be a subjective finding. Mr Buntine commented generally that Mr Houseman was cautious in expressing his views. So, equally, was Mr Buntine, saying no more than the scarring from the surgery might result in stenosing tenosynovitis. The Tribunal was not satisfied that the applicant had stenosing tenosynovitis.
56. The reports that recorded that doctors were able to passively extend the fingers when the applicant demonstrated restricted movement, show that the applicant was not cooperating fully with the doctors examining him. The Tribunal accepts the evidence of Mr Buntine that the applicant was exhibiting abnormal illness behaviour, that he was not cooperating, and that when he examined the applicant’s hand on two occasions, essentially it was normal. The Tribunal was also satisfied that, quite apart from any problems of diagnosis of an injury in October 2002, from the time the applicant returned to work in August 2002 and until the second claim, he was doing very limited keying. The Tribunal accepts the evidence of Mr Kirko that the applicant was averaging eight calls per day. The Tribunal also accepts the evidence of Ms Cadd that the applicant was doing limited keying work. Based on eight telephone calls, using the average number of keystrokes Ms Cadd recorded in her report, it would be extremely limited keying. It would not be possible, even without the problems of diagnosis, to draw the connection between the work that the applicant was undertaking and injury, however described, because the applicant was not doing repetitive keying.
57. For these reasons the claim as it relates to inflammation and pain in the area of the A1 pulley of the right middle finger must fail.
DECISION
58. The Tribunal sets aside the reviewable decisions dated 18 February 2002 and 20 March 2002. The Tribunal substitutes the decision that the ganglion and flexor tenosynovitis of the right middle finger suffered by the applicant in about October 2001 arose in the course of his employment. The Tribunal decides that the applicant is entitled to compensation under s16 and 19 of the Act until 10 December 2001, including for surgery to the finger conducted on 27 November 2001. The Tribunal affirms the reviewable decision dated 12 March 2003, affirming the determination dated 5 December 2002.
I certify that the fifty‑eight [58] preceding paragraphs are a true copy of the reasons for the decision of:
M.J. Carstairs, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 11 September 2002, 20 March 2003, 22 ‑ 23 May 2003 & 7 August 2003
Date of decision: 16 December 2003
Solicitor for applicant: Self‑represented
Counsel for respondent: Ms A. McMahon
Solicitor for respondent: Australian Government Solicitor
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