Kropp and Comcare (Compensation)

[2019] AATA 4078

Kropp and Comcare (Compensation) [2019] AATA 4078 (4 October 2019)

Division:GENERAL DIVISION

File Number(s):      2017/7021

Re:Benjamin Kropp

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:4 October 2019

Place:Canberra

The Tribunal sets aside the Reviewable Decision dated 28 September 2017.

In substitution, the Tribunal decides that the original determination dated 5 August 2016 is reinstated.

........................................................................

Senior Member Linda Kirk

CATCHWORDS

WORKERS’ COMPENSATION – stenosing tenosynovitis – trigger finger – whether the Applicant suffers an ailment or an aggravation of an ailment as defined in s 4 of the Safety, Rehabilitation and Compensation Act - whether the respondent is liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act – whether the ailment or aggravation of an ailment was contributed to, to a significant degree, by the Applicant’s employment – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975

Safety, Rehabilitation and Compensation Act 1988

Cases

Comcare v Power [2015] FCA 1502
Comcare v Reardon [2015] FCA 1166

McDonald v Director-General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

Senior Member Linda Kirk

4 October 2019

1. Mr Benjamin Kropp (‘the Applicant’) was born in 1979.  He commenced employment as a Police Officer with the Australian Federal Police (‘AFP’) on 10 April 2007.

2. On 20 January 2015, the Applicant sustained an injury to his left thumb whilst working crowd control at Canberra Stadium in Bruce.  The Incident Report describes the injury as ‘dislocated left thumb removing a pitch invader’.[1]

   [1] T3, 4.

3. On 30 January 2015, the Applicant submitted a claim for workers’ compensation for ‘bruised thumb – L’ for this injury.[2]  On 27 February 2015, Comcare (‘the Respondent’) accepted liability for ‘sprains and strains of finger (left)’.[3]  By determination dated 11 September 2017, the Respondent amended the classification of the Applicant’s left finger condition from ‘sprains and strains of finger (left)’ to ‘ulnar collateral ligament strain (left)’.[4]

   [2] T4, 7.

   [3] T8, 21.

   [4] T174, 550.

4. By determination dated 5 August 2016, the Respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘trigger finger (right)’.[5]

   [5] T110, 324.

5. On 26 October 2016, the Respondent determined under s 16 of the SRC Act that compensation was payable for ‘ultrasound guided cortisone injection right index finger’.[6]

   [6] T119, 356.

6. On 7 September 2017, the Respondent advised the Applicant of its intention to conduct a reconsideration of own motion, regarding the determination dated 5 August 2016 which accepted liability under s 14 of the SRC Act for ‘trigger finger (right)’.[7]

   [7] T172, 545-546.

7. On 28 September 2017, the Respondent conducted a reconsideration of own motion of the determination dated 5 August 2016[8] (’the Reviewable Decision’). The review officer was not satisfied, on the basis of the medical evidence, that the Applicant’s right finger condition had arisen due to overcompensating for his compensable left finger condition. As such, the review officer revoked the decision of 5 August 2016, and declined liability under s 14 of the SRC Act for the secondary condition of ‘trigger finger (right)’.

   [8] T178, 558-561.

8. By determination dated 4 October 2017, the Respondent declined liability to pay compensation for the cost of ‘right index finger trigger release + synovectomy’ under s 16 of the SRC Act.[9] 

   [9] T179, 562.

9. On 27 November 2017, the Applicant’s solicitors lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’).  The Applicant’s solicitors stated the reason for the application was that ‘the Respondent misapplied the legislation and case law according to the SRC Act’.[10]

   [10] T1, 1-2.

10. The review application was heard by the Tribunal at a hearing in Canberra on 17 and 18 June 2019. The following witnesses gave oral evidence at the hearing:

    ·The Applicant;

    ·Dr Leon Le Leu, Occupational Physician; and

    ·Dr Mohamad Mourad, Orthopaedic Surgeon.

11. The following documents were before the Tribunal:

    ·Section 37 T-Documents (Exhibit A1);

    ·Applicant’s Statement dated 18 April 2019 (Exhibit A2);

    ·Applicant’s Statement dated 18 May 2019 (Exhibit A3);

    ·Medical report of Dr Le Leu dated 7 April 2018 together with the Briefing Letter dated 15 March 2018 (Exhibit A4);

    ·Medical report of Dr Le Leu dated 21 May 2019 together with the briefing letter dated 14 May 2019 (Exhibit A5);

    ·Applicant’s Statement of Facts, Issues and Contentions dated 19 December 2018 (Exhibit A6);

    ·Supplementary report of Dr Mohamad Mourad dated 19 July 2018 together with the briefing letter dated 4 July 2018 (Exhibit R1); and

    ·Extract titled “Trigger Digits” from AMA Guides to the Evaluation of Disease and Injury Causation, 2^nd Edition (2013) (Exhibit R2); and

    ·Respondent’s Statement of Facts, Issues and Contentions dated 31 January 2019 (Exhibit R3).

    ·Also add Respondent’s and Applicant’s SFICs

    LEGISLATIVE FRAMEWORK

12. The right to compensation for an employee under the SRC Act is conferred by s 14(1) which provides that 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.

    (emphasis added)

13. “Injury” is defined in s 5A of the SRC Act:

    “(1)     …

    (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.

14. A “disease” is defined in s 5B of the SRC Act to mean::

    “(1)     …

    (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.”

15. In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment s 5B(2) provides that 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.

16. This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”

17. An “ailment” is defined in s 4 of the SRC Act to mean:

    “… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

    ISSUES FOR DETERMINATION

18. The issues for determination are as follows:

    (a)Does the Applicant currently suffer from the claimed condition of ‘trigger finger (right)’?

    (b)If so, was the Applicant’s claimed condition contributed to, to a significant degree, by the Applicant’s employment with the AFP?

    EVIDENCE BEFORE THE TRIBUNAL

    Applicant’s employment with the AFP

19. Prior to the incident on 20 January 2015, the Applicant had been working in the AFP’s Emergency Management and Planning ('EM&P') division for nearly five years as a specialist planner. EM&P was responsible for managing ACT Policing's response to "Planned" events, as well as ensuring it is prepared for the larger scale "Emergency" incidents. In most cases, the members of EM&P became the Police Incident management team for all these events/incidents.[11]

    [11] Exhibit A3, [3]-[4].

20. The Applicant’s work time was almost evenly split between "in office" based duties and "out of office" duties, with many progressing from the planning of the Police response to an event/incident, to the running of the Police response to an event/incident. His work hours were no less than four, 10 hour days per week whilst planning, but could/would regularly extend to 80+ hour weeks during some of the larger events, as well as having regular 'on call' hours.[12]

    [12] Exhibit A3, [4].

21. The Applicant’s "in office" based duties included but were not limited to a mix of meetings, discussion groups, and advice sessions with internal and external stake holders. Tasks included but were not limited to report, procedure, and plan writing, legislation and policy preparation and amendment, note and minute taking, as well as event logs at a variety of events and incidents. The majority was all typed within a variety of programs including Microsoft Office as well as AFP software. There was a significant amount of computer based research regarding legislation and policy. A lot of the computer based work relied heavily on multitasking and mouse work.[13]

    [13] Exhibit A3, [5].

22. The Applicant’s "out of office" activities included being on the ground and physically present at events such as planned incidents and events like 'Skyfire', Canberra Show, 'Summernats', ANZAC Day, sporting events, private community events both large and small scale, as well as government events open to the public and not.  These activities also included providing a specialised management response capability to unplanned or unanticipated events and incidents such as protests and demonstrations, larger emergency type incidents such as fires, evacuations, weather events (floods, high winds), health related (extreme heat/cold, contamination), and being prepared for and continually ready to manage an emergency response to more nefarious incidents.[14]

    [14] Exhibit A3, [6].

    Left thumb injury sustained on 20 January 2015

23. On Tuesday 20 January 2015, the Applicant was working at Canberra Stadium in Bruce, overseeing an Asian Cup soccer match. Towards the end of the match, a male pitch invader entered the playing field and appeared to be heading towards the officials’ box which included a number of international dignitaries. The Applicant saw the need to intervene. He grabbed hold of the invader whilst other officers came to assist. In the course of his struggle with the invader, the Applicant’s left thumb was hyperextended. He felt a sharp initial pain which subsided, although his lower wrist and thumb became quite swollen. He saw the on-site paramedics who told him to put some ice on it and be seen at the first available time at a hospital emergency department. 

    Treatment for left hand injury

24. At the conclusion of his shift, the Applicant attended the Accident and Emergency department at Calvary Hospital in Bruce. Some x-rays were performed which did not show any abnormality. He was certified unfit for work for the remainder of the week (two days) and he was told to see his general practitioner. He saw Dr Benjamin Martin on Friday, 23 January 2015.  His thumb was still swollen and sore and he was referred for a MRI. He attended an initial MRI appointment and a second appointment the following day for additional scans. These MRIs did not show any major injury.[15]

    [15] Exhibit A3, [7].

25. The Applicant submitted a claim for Workers' Compensation for 'bruised thumb — L' on 30 January 2015. The Respondent accepted liability for 'sprains and strains of finger (left)' on 27 February 2015.

26. The Applicant continued treatment with Dr Martin and with Ms Lin Wegener of Shoulder2Hand Orthopaedics. This primarily took the form of management of the injury with splints, immobilisation and graduated rehabilitation.[16]  He wore a splint on his hand which immobilised it so that he could move his fingers but not his thumb.  He could do some things with his hands that did not require grip, but he could not hold small items such as a pen or cutlery.

    [16] Exhibit A2, [18].

27. The Applicant’s symptoms were significant and persisting. On 30 April 2015 he was referred to Dr Sindy Vrancic, orthopaedic surgeon, for further treatment and opinion.[17] When he saw Dr Vrancic there was distinct swelling and pain over the metacarpophalangeal joint (‘MCP joint') of his left hand.  Dr Vrancic thought there may have been a ligament tear, despite the earlier MRI which did not show any major injury. She recommended that the Applicant undergo a surgical procedure to repair the ulnar collateral ligament (‘UCL').[18]

    [17] Exhibit A2, [18].

    [18] Exhibit A2, [19]; T20, 50.

28. At the hearing, the Applicant told the Tribunal that during the period January to July 2015 he was taking Panadeine Forte, Tramadol and anti-swelling medications for the pain in his left hand.

    Return to work following injury

29. Following the injury to his left hand, the Applicant was off work for about six weeks to two months. He returned to work gradually starting at about 10 hours a week spread across one day increasing to two days a week. His hours increased gradually and steadily over the course of the following months.[19]  

    [19] Exhibit A2, [20]; Exhibit A3, [9].

30. When the Applicant returned to work, he was restricted to an administrative role.  Because of the splint on his left hand, and due to the pain symptoms, he performed almost all functions with his right hand.  He found this difficult because his left hand is his dominant hand, and it was tiring and frustrating using his non-dominant hand for precise tasks such as typing and mousing on the computer.[20]

    [20] Exhibit A2, [17].

31. During cross-examination, the Applicant was questioned about the role he performed on return to work.  He explained he was in a new role as a Blood and Breath Officer which involved the collection of samples from police stations and hospitals in the ACT and delivering them to ACT Government laboratories for testing.  He collected up to 70 samples per week.  He was able to perform this role using his non-dominant (right) hand to complete paperwork and to sign for the samples when they were collected.

32. Towards the end of June and into early July 2015, the Applicant had built his work hours back up to 32 hours a week across four days, as he continued modified and restricted non-operational duties. He was moved out of EM&P and into a support role for the Officer in Charge of the Traffic Operations branch. His work day would comprise working on whatever project he was assigned to at the time; this would typically change from week to week. All of his work was computer based, with small amounts of written work. Whilst he had scheduled start and finish times, he did not have scheduled breaks.For the vast majority of his work days he did not take breaks due to the shortened number of hours he was working per day, and the need to complete his work whilst only being able to work single handed and at a very much reduced pace.[21]

    [21] Exhibit A3, [9].

    Surgery to left hand

33. In a letter to Dr Martin dated 2 June 2015, Dr Vrancic stated that the Applicant’s left thumb condition was in fact a tear of the left thumb MCP joint post ulnar ligament. She recommended the Applicant undergo surgery to repair the tear.[22]  On 22 June 2015, the Respondent accepted liability for the surgery proposed by Dr Vrancic.[23]

    [22] T20, 50.

    [23] T22, 52-53,

34. The Applicant underwent the UCL repair procedure on 17 July 2015 at the National Capital Private Hospital.  Dr Vrancic reported her findings: “Laxity UCL more off MC [metacarpal] with some healing tissue.’[24] For approximately the next six months, his left hand was completely strapped so he still performed almost all activities with his right hand, despite the pain and restriction of movement.[25]

    [24] T30, 89.

    [25] Exhibit A2, [24].

    Right hand problem and treatment

35. The Applicant’s right hand became increasingly sore and tired at the end of each working day.  He had significantly increased his typing speed, and the accuracy of both his typing and mouse work had also increased dramatically.  He had also taught himself to write at a somewhat legible standard with his right hand.  Whilst his accuracy with the mouse pointer had increased, he was finding it more and more difficult to operate the mouse buttons without causing distress in his right hand, especially his right index finger and to a lesser extent the middle finger. Whilst writing, he would experience localised pain where the pen would rest, and if he had any more than a paragraph to a half page to write, he would find that his right index finger would 'lock' in a closed/contracted state.[26] 

    [26] Exhibit A3, [9]; Exhibit A2, [20]

36. In early July 2015, his right finger became significantly worse, with significant swelling and pain and discolouration.  On 10 July 2015, he presented to Accident and Emergency at the Canberra Hospital.  An ultrasound of his right hand showed some swelling of the tendon sheaths and signs of early tenosynovitis.[27]  The Applicant originally thought that he had injured his right hand without his knowledge or had been bitten by an insect.  Examinations showed no signs of trauma, bite or sting.[28]   As there was no trauma to his hand to explain the symptoms, the plastics registrar at the Hospital was contacted.  Due to the scan showing some indication of tenosynovitis, the plastics registrar was concerned that there was some sort of infection in the tendon sheath, or an injury that damaged the tendon sheath.  The Applicant was prepared for emergency surgery as a precaution, and he remained in hospital for three nights receiving intravenous antibiotics.  He was discharged as the ultrasounds, x-ray and blood tests showed nothing of any major significance, and the inflammation was deemed as being non-infected.  He was advised to follow up with his general practitioner, Dr Martin.[29]  He recalls attending the plastics department at the Canberra Hospital on a few further occasions for follow up treatment.[30]

    [27] Exhibit A2, [21]; Exhibit A3, [10].

    [28] Exhibit A3, [11].

    [29] T26, 75-79.

    [30] Exhibit A2, [22]-[23].

37. During cross-examination, the Applicant agreed that at the time he experienced symptoms in his right hand he did not believe it was related to the (over)use of his right hand at work to compensate for the injury to his left hand.  It was at a later time that he inferred that the symptoms were work-related.

    Impact of injuries

38. In his Statement dated 18 April 2018, the Applicant described the impact of his injuries on his professional and personal life:

    My left and right hand injuries have caused a significant impact to my personal and professional life. I am no longer an operational officer, and am no longer allowed to carry a weapon and perform the duties that I could previously. I had previously enjoyed mountain-biking, building models and radio-controlled sailboats, photography and volunteering in the rural fire service but these activities have ceased. In fact, any task involving dextrous movement of my hands is either extremely difficult or impossible.

    The injuries make life very difficult for me to perform activities of daily living around the house. The difficulty with having injuries to both hands is that I cannot relieve the symptoms of one by using the other and any task involving both hands is not possible without significant pain and discomfort.

    I have two sons who are aged 3 and 5. Because of my injuries the normal activities of an active father like wrestling and playing with them are either extremely difficult or impossible.

    I am presently working 10 hours a day, 4 days per week in modified duties. I currently work in a role involving the collection and analysis of blood and other samples for drug and alcohol driving offences. I think it unlikely at the moment that I will be able to return to my former duties.

    My right index finger is restricted in movement and I have difficulties straightening it without assistance, and without pain. It becomes stiffer and more inflamed in periods of sustained or repetitive activity, such as using the computer or writing, and in colder temperatures. As noted above, as I am left hand dominant and as my left hand symptoms are still present I try to write with my non-dominant right hand as much as possible, which would be difficult purely because it is my non-dominant hand but with my symptoms being the way they are it can be a very frustrating and painful exercise.[31]

    MEDICAL EVIDENCE

    [31] Exhibit A2, [37]-[41].

    Medical examinations for right hand injury

1. On 11 July 2015, the Applicant underwent ultrasound imaging of his right second finger. In a report of the same date, Dr Peter Foley, radiologist, commented on the reports of the imaging, and reported:[32]

   No definite evidence of right index finger flexor tendon tenosynovitis. Trace of hypoechoic fluid within the flexor tendon sheath. Surrounding increased echogenicity, edema and increased vascularity indicating inflammation. Early tenosynovitis could give this appearance. Ankle (sic) correlation is required.

   [32] T26, 78.

2. On 11 July 2015, the Applicant underwent x-ray imaging of his right second finger. In a report of the same date, Dr Mark Page, radiologist, commented on the results of the imaging, and reported:[33]

   No radiopaque foreign body is identified. No destructive bony lesion. Please note that MRI has higher sensitivity and specificity for osteomyelitis. Clinical correlation advised.

   [33] T26,78.

3. On 7 August 2015, the Applicant was seen by Ms Lin Wegener at Shoulder2Hand Orthopaedics who referred to the Applicant’s right finger condition: “previous tenosynovitis in (R) IF [index finger] which has been treated at TCH [The Canberra Hospital] has now become aggravated due to overuse. Pt encouraged to continue to use compression to manage swelling (R) IF”.[34]

   [34] Summonsed documents – Shoulder2Hand, 8.

4. On 15 October 2015, the Applicant attended and was seen by Dr Sue Witchalls at Shoulder2Hand Orthopaedics who recorded: “Pt reports episode of R side tenosynovitis when originally injures L side”.[35]

   [35] Ibid, 4.

   Dr Ben Martin, General Practitioner

5. On 14 August 2015, Dr Ben Martin completed a medical certificate in which he referred to the Applicant’s right finger condition. In the medical certificate, Dr Martin stated:

   I find that [the Applicant] is suffering from Strain L thumb (hyperextension) + R index finger flexor tendonitis (due to compensating). [36]

   [36] T184, 589.

6. On 21 August 2015, Dr Martin noted on a medical certificate that in addition to his left thumb injury, the Applicant was suffering from ‘R index finger flexor tendonitis' due to overcompensating.[37]

   [37] T184, 591.

7. Dr Martin gave the Applicant three cortisone injections into his finger to treat his symptoms.[38]  The full effects of the injections took several days to fully develop, and the benefits lasted for approximately 6 weeks before the symptoms returned. The subsequent two sessions had decreasing effectiveness and were shorter in duration. Dr Martin later advised that any further sessions could have adverse effects.[39]

   [38] Exhibit A2, [26].

   [39] Exhibit A3, [13].

8. On 2 September 2015, Dr Martin completed the first medical certificate in which he recommended the Applicant receive medical treatment for a right finger condition.[40]

   [40] T184, 593.

9. On 27 November 2015, the Applicant was seen by Dr Martin who recorded: “R finger not painful – but feels stiff – this is his mouse hand”.[41]

   [41] T184, 599.

10. On 9 June 2016, Dr Martin referred the Applicant to the Canberra Hospital for an ultrasound guided cortisone injection to the right index finger.[42]  In a report to the Respondent dated 9 June 2016, Dr Martin wrote the Applicant first sought treatment for his right finger on 10 July 2015 when he was admitted to the Canberra Hospital.[43]

    [42] T98, 296.

    [43] T94, 283.

11. Dr Martin reported:

    Mr Kropp reported pain and swelling of his right index finger as a result of using his mouse at work, having to compensate given his left thumb injury that was operated on and splintered.

    …

    The specific diagnosis of Mr Kropp’s condition is flexor tendonitis. There was acute onset swelling of the index finger with tenderness and reduced flexion and extension of the finger. Tendonitis is inflammation of a tendon most commonly due to overuse.

    ...

    Mr Kropp had become non-operational since his work-related injury, this required him to perform administrative duties that he was not used to performing and for the duration he would normally be required.  Not only was he required to perform administrative duties but he was required to work with his non-dominant (right) hand. Given the repetitive work and using his non-dominant hand this predisposed him to developing tendonitis in his right index finger.  There was no underlying or pre-existing conditions …

    …

    The injury was sustained by prolonged periods of mouse usage while working administrative duties at the police station while Mr Kropp was on modified duties.

    …

    Mr Kropp developed tendonitis in his right index finger as a result of compensating for the injury sustained to his left thumb. Given this, I feel that it would be appropriate to say it is related to this injury and it is not as a result of a new set of circumstances

    Dr Sindy Vrancic, Orthopaedic surgeon

12. On 11 September 2015, Dr Vrancic wrote to Comcare and stated:[44]

    It is unusual for overcompensation to trigger an isolated index finger tenosynovitis. As his left hand is in a thumb spica, his fingers are however free and able to do most things. I have many patients who I placed in thumb spica plasters for prolonged periods of time and never before have I seen a patient develop an overcompensatory isolated single digit flexor tenosynovitis. As such it is difficult to contribute the tenosynovitis secondary to overcompensation for being in plaster.

    In my opinion, the flexor tenosynovitis is a coincidental condition rather than a compensatory one. 

    Flexor tenosynovitis is a common condition that can affect any flexor tendon in the body.  It uncommonly affects a single digit as a non-infective process, rather it is often infection or irritation from a foreign body that more commonly produces and isolated digit tenosynovitis.  To my knowledge an isolated idiopathic finger flexor tenosynovitis is a rare condition and flexor tenosynovitis is generally caused by a variety of either acute or chronic inflammatory condition such as rheumatoid arthritis and infection. It is rare to be an overuse issue, rather it is more a non-specific inflammatory response and as such we may never know its true cause. (emphasis in original).

    [44] T42, 112-113.

13. On 10 February 2016, Dr Vrancic wrote to the Respondent to seek approval for the Applicant to undergo a ‘right index trigger finger release + synovectomy’.[45]  In her report Dr Vrancic wrote:[46]

    Of greater concern to me today is the significant triggering of his right index finger. His right index has been clinically symptomatic for a significant period of time and on review it has been present since July of last year where he was admitted under the Plastics Team.

    Flexor tenosynovitis is usually a constitutional disorder but it has been made significantly worse due to his inability to use his left hand. While it is idiopathic it has been exacerbated by his overuse of his right hand and has reached the point now where it is severely symptomatic and requires surgical intervention. I would be happy to proceed with surgery when approval is received (emphasis added).

    [45] T70, 199.

    [46] T71, 200.

14. The Applicant attended Dr Vrancic on 26 June 2017.  In a letter to the Respondent on the same date, ., Dr Vrancic wrote to the Respondent to seek approval for the Applicant to undergo a ‘right index trigger finger release + synovectomy’.[47]

    [47] T163, 510.

    Dr Leon Le Leu, Occupational Physician

15. In a report to the Applicant’s solicitors dated 7 April 2018 Dr Leon Le Leu, Occupational Physician, opined that the Applicant was suffering from stenosing tenosynovitis of the flexor tendon of the right forefinger, resulting in triggering.[48]

    [48] Exhibit A4, 16-17.

16. He stated in his report:

    While I accept there is insufficient evidence to state that the tenosynovitis arose ab initio secondary to compensation – not necessarily overcompensation – for the left hand injury, I would agree with Dr Vrancic “it has been made significantly worse due to his inability to use his left hand. While it is idiopathic, it has been exacerbated by his overuse of his right hand”. (emphasis in original).

    [The Applicant’s employment] was a significant contributing factor to the onset of the right hand condition …

    …

    He does suffer from a right hand condition which was significantly contributed to by his employment … That is, one can attribute the condition to his employment. (emphasis in original).[49]

    [49] Exhibit A4, 16.

17. In a supplementary report dated 21 May 2019,[50] Dr Le Leu stated that having read the additional documentation provided to him, he had no reason to depart from the opinions provided in his first report.

    [50] Exhibit A5, 7.

18. During his oral evidence at the hearing, Dr Le Leu confirmed that he holds a Bachelor of Medicine and Bachelor of Surgery, a Bachelor of Medical Science with First Class Honours and a Master of Public Health.  He is a Fellow of the Australian Faculty of Occupational Medicine (Royal Australasian College of Physicians).

19. Dr Le Leu confirmed that in his opinion the Applicant’s right-hand condition is idiopathic, in that there is no identifiable or known cause for it, and that the condition was exacerbated by work.  He was asked on what basis he was able to form this view.  He said that he referenced a service called ‘Uptodate’.  He told the Tribunal that stenosing tenosynovitis can be diagnosed and treated by a general practitioner and also by a surgeon.  He himself has sufficient experience in diagnosing the condition and also in forming a view as to whether overuse could worsen it.

20. Dr Le Leu explained that stenosing tenosynovitis compromises the structure of the finger which makes it more prone to further damage.  The tendon sheath is inflamed and scars and this leaves a smaller opening for the tendon to move through and the capacity for it to move is compromised or disrupted.  The idiopathic condition may have been present in the Applicant without any symptoms, and it went from asymptomatic to symptomatic in July 2015 around the time when he presented at the Canberra Hospital. The symptoms were not appreciable prior to this time. The condition may have been present in that there were structural changes that had occurred, but it was asymptomatic until the use of the right hand was increased beyond its limit in July 2015.  He referred to academic literature on ‘overuse syndrome’ which he said does not explain the condition, but it can worsen the symptoms of the condition.    

21. During cross-examination, Dr Le Leu was asked about the history he obtained from the Applicant in relation to ‘overuse’ of his right hand.  He told the Tribunal he understood that the Applicant used his non-dominant right hand in a normal manner prior to the injury to his left hand.  Once his dominant left hand was immobilised, the frequency of use of his right hand increased and/or was used differently to take over the functions of his left hand such that it exceeded its limit.  He was asked whether any additional use would amount to ‘overuse’.  He said there is an area of standard use of a hand and an area of ‘back up’ available to compensate when the other hand is not available for use. There is a point at which increased use of the hand becomes ‘overuse’.  He said it is difficult to say at what point this is reached, and it would vary from person to person.  But when there is an onset of symptoms, it is reasonable to assume that there is a link between the symptoms and the level of use.  In the Applicant’s circumstances, the fact that symptoms presented coincidental with the (over)use of his right hand strongly suggests a link between the onset of the condition and his employment. 

22. Dr Le Leu was told about the Applicant’s work pattern and duties following his return to work.  He said that he had assumed the Applicant was doing 100% office work and he was unaware of how many hours he worked.  He was unaware that the Applicant was out on the road one day a week collecting blood samples, and that his work in the office was limited to every second day for a few hours only.  He did not know that the Applicant was working only three days a week at the most until July 2015.  He said that everyone has different capacities and he could not exclude the possibility that his work pattern made the condition worse.  He agreed that had he been aware of this, he would have considered it less probable, or only possible, that the Applicant’s use of his right hand would have reached the ‘threshold’ of overuse for symptoms to manifest.

23. During re-examination Dr Le Leu was asked whether the pain medication the Applicant was taking for his left hand injury from 25 January to early July 2015 could have obscured the effects of the right-hand condition, and could this explain why he had symptoms when he ceased taking medication as instructed prior to the surgery to his left hand.  Dr Le Leu said that the Applicant may not have been aware of the pain and inflammation in his right finger due to the effects of the pain medication, but the physical triggering of his finger would not have been affected by the medication.

24. Dr Le Leu confirmed that he did not take any history of rheumatoid arthritis or diabetes from the Applicant.

    Dr Mohamad Mourad, Orthopaedic Surgeon

25. In a report to the Respondent dated 22 August 2017 following an assessment of the Applicant on 11 August 2017,[51] Dr Mohamad Mourad, Orthopaedic Surgeon, opined that the Applicant was suffering from stenosing tenosynovitis of the right index finger.

    [51] T171, 528-536.

26. Dr Mourad wrote:[52]

    [52] T171, 530; 533.

    Mr Kropp stated that in July 2015, he began to notice right index finger swelling and stiffness but there was no trauma involved. He believes his right index finger started playing up as a result of him having to use his right hand more often following surgery in April (sic) to his left thumb.

    ...

    Trigger fingers or stenosing tenosynovitis of the A1 pulley results in painful clicking and locking of the involved digit.  It is usually idiopathic although it can be secondary to conditions such as rheumatoid arthritis, gout and even diabetes.

    …

    The development of his right index finger triggering seems to be idiopathic.

    ...

    I do not believe that the right trigger finger condition is a consequence of overcompensation. The AMA Guides to the evaluation of disease and injury causation Chapter 9 discusses occupational risk factors for trigger fingers on page 254 and it states the following:

    Combination of risk factors, example force and repetition, force and posture (insufficient evidence), vibration (insufficient evident), highly repetitive work alone or in combination with other factors (insufficient evidence), forceful work (insufficient evidence), awkward postures (some evidence), keyboard activities (insufficient evidence), cold environment (insufficient evidence), length of employment (insufficient evidence).[53]

    [53] T171, 533.

27. In a supplementary report dated 19 July 2018,[54] after having reviewed new material and the report of Dr Le Leu, Dr Mourad remained of the same opinion in his initial report of 22 August 2017, namely that the Applicant’s condition was not significantly contributed to by his employment.

    [54] Exhibit R1.

28. At the hearing, Dr Mourad told the Tribunal that he holds a Bachelor of Medicine and Surgery and a Graduate Diploma in Clinical Epistemology and he is a Fellow of the Royal Australasian College of Surgeons and a Fellow of the Australian Orthopedic Association.  He has practiced as an orthopedic surgeon for the past 10 years.

29. During his evidence at the hearing, Dr Mourad told the Tribunal that most general practitioners and occupational physicians can diagnose and treat the Applicant’s condition.  In relation to forming an opinion on causation, Dr Mourad said it would depend on the practitioner’s level of experience treating the condition.  He agreed that Dr Le Leu is not more or less qualified than he is to make a finding as to causation.

30. Dr Mourad told the Tribunal that the onset of the condition is instantaneous rather than gradual.  He considered it unlikely that the condition was due to overuse or an external trigger.  If this were so, then the affected finger would be put in a splint after surgery or an injection, but this is not the practice as it is considered best for the finger to be used.  The condition is more likely related to constitutional factors, for example rheumatoid arthritis, an inherent disposition to inflammation or diabetes. He was asked whether the pathology can be ‘in the background’ and then following ‘overuse’ the pathology is made worse. He said it is unlikely that the pathology is present without symptoms. In his view, the pathology was previously asymptomatic, and became symptomatic at the point when the finger became stuck or locked and had to be physically straightened. The patient would have to report these symptoms before a diagnosis could be made.

31. Dr Mourad agreed that it is not impossible for stenosing tenosynovitis to be contributed to by overcompensation in employment.

32. Dr Mourad was asked about whether the pain medication the Applicant was taking during January to July 2015 could have masked symptoms in the Applicant’s right hand.  He said that if pain was a symptom, then when he eased off the medication the symptoms could have increased.

33. Dr Mourad agreed that he was not provided with Dr Vrancic’s report dated 10 February 2016 until he prepared his second report on 19 July 2018, nor had he been provided with the report of Dr Martin dated 9 June 2016.  He acknowledged that he is the only doctor amongst the four experts who is of the view that the Applicant’s employment was not a contributing factor to his condition.

34. Dr Mourad confirmed that he took a history from the Applicant and there was no indication that he had a history of rheumatoid arthritis, gout or diabetes.  He had a raised C-reactive protein (‘CRP’) in July 2015 which is a marker of inflammation.

    SUBMISSIONS

    Applicant

35. There is no dispute in relation to the disease suffered by the Applicant as it has been diagnosed by four doctors as stenosing tenosynovitis.  Nor is there any dispute as to the treatment the condition requires.  The issue is whether or not the Applicant’s employment is a significant contributing factor to the disease suffered by the Applicant.

36. Three doctors agree that the Applicant’s employment was a significant contributing factor to his condition: Dr Martin, Dr Vrancic and Dr Le Leu.  Dr Mourad is the only doctor who finds otherwise.  When he prepared his first report dated 22 August 2017, Dr Mourad was not provided with two reports from doctors (Dr Martin and Dr Vrancic) who support the causal connection between the disease and the employment. In particular, he was not provided with Dr Vrancic’s report dated 10 February 2016, in which she departed from the view she expressed in her first report dated 11 September 2015, and found a causal link between the disease and the Applicant’s employment. 

37. In his report dated 7 April 2018, Dr Le Leu agrees with Dr Martin and Dr Vrancic and opines that the Applicant’s right index finger condition had been made significantly worse due to his inability to use his left hand and was exacerbated by overuse of his right hand at work.  He disagrees with the opinion expressed by Dr Mourad.

38. All the doctors agree that there is no medical or scientific explanation as to the origin of the Applicant’s disease and that it is usually idiopathic. They also agree that it can be secondary to other conditions such as rheumatoid arthritis and diabetes.  Dr Martin and Dr Vrancic took a detailed history from the Applicant and they did not identify any secondary factors which may give rise to stenosing tenosynovitis.

39. Dr Mourad’s evidence is that tenosynovitis can never be related to employment or any other factor as it is constitutional rather than occupational.  This disregards the factual nexus giving the basis for diagnosis of tenosynovitis by three doctors.

40. The Applicant has provided evidence of his symptomatology from late January 2015 until his hand went ‘beserk’ in early July 2015.  The symptomatology he reported at the Canberra Hospital on 10 July 2015 is not determinative of the onset of the condition.  Whereas he was experiencing pain and discomfort, he did not present earlier as he was not one to go to hospital for a minor condition, and he was taking pain medication for his left hand injury.

1. There was a clear change in the Applicant’s circumstances in that he had limited capacity in his left hand due to the injury, and was required to use his right (non-dominant) hand to perform his work duties. This was the only change to his circumstances during the relevant period, and this is sufficient to meet the test of significant contributing factor. Accordingly there should be a reversal of the decision and liability found in accordance with s 14 of the SRC Act.

   Respondent

2. The Applicant cannot succeed because the mechanism of causation is dependent upon a work contribution via activity and the activity is minor.  It is not clear whether the doctors who find a causal connection between the disease and employment were aware of the amount of work the Applicant did between January and July 2015.  The only doctor who was made aware of this history was Dr Le Leu, and he put the work contribution no higher than a ‘possibility’.  This is insufficient for the civil onus of proof to be satisfied.

3. The training and experience of Dr Mourad is superior to that of Dr Le Leu and should be preferred.  This is particularly in relation to Dr Le Leu’s two-stage mechanism of causation that he outlined in his oral evidence, which separates the pathology of the disease from the symptoms.  Dr Mourad by contrast gave evidence that without the pathology there are no symptoms.  There is a condition made manifest by the triggering of the finger, and the triggering causes the symptoms.  It does not become symptomatic until it presents, and it presents with the symptoms which the Applicant complained of, such as triggering, catching and pain.  The condition did not exist before the triggering, because the triggering is the central diagnostic indicator.  It is a one-stage process and the process crystallised when the Applicant first presented with symptoms sufficient to diagnose trigger finger, that is, in early July 2015 just prior to his presentation at the Canberra Hospital.  At this time the Applicant did not believe there was a causal link between work and the condition.  This did not occur to him until later, after which he inferred the connection between work and the condition.

4. Dr Le Leu inferred that there had been a causal relationship between the disease and employment simply because of the temporal connection between the two.  He was unable to say when the point was reached that the Applicant had exceeded the residual capacity he had in  his right hand.

   CONSIDERATION AND REASONS

5. The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.

6. The Tribunal’s role on review is established by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) which provides that the Tribunal “may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”. As Woodwood J explained in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 (‘McDonald’), the Tribunal is effectively required by s 43 of the AAT Act to put itself in the position of the decision-maker and, based on the material before it, make its own decision. 


7. As Katzmann J explained in Comcare v Power [2015] FCA 1502 (‘Power’), to speak in terms of a party bearing an onus of proof (whether legal or evidential) in proceedings before the Tribunal is apt to mislead. After referring to McDonald and noting that it was common ground that the Act did not provide for an evidential onus, Her Honour stated at [63]:

   Here, as Comcare acknowledged in argument, the decision the Tribunal was reviewing was whether or not to terminate Ms Power’s compensation entitlements arising from the compensable injury in light of changed circumstances. It was not reviewing a decision based on fresh evidence as to whether compensation should ever have been awarded. In a case such as this, as Woodward J explained in McDonald at 359, having considered all the available evidence, if the Tribunal was left in a state of indecision, it should have been resolved in the claimant’s favour.

8. Her Honour later observed at [70]:

   Nonetheless, I accept that it is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made. The statement the Tribunal made in the present case that Comcare did not discharge its onus should be taken to mean that the Tribunal was not persuaded that Ms Power was no longer suffering from the effects of the compensable injury.

9. Accordingly, although there is no legal or evidentiary onus, ‘as a practical matter’ the Respondent must persuade the Tribunal of the circumstances that justify a finding that there is no liability for the claimed condition.  Whereas Power concerned a no present liability determination for ss 16 and 19 entitlements rather than a retrospective denial of liability, the Tribunal finds that the same approach is applicable in these circumstances and the Respondent must persuade the Tribunal that there is no liability under s 14.

   Medical experts

10. The Tribunal has had regard to the qualifications and experience of the four medical experts.  It notes that Dr Mourad and Dr Vrancic are orthopaedic surgeons, Dr Martin is a general practitioner, and Dr Le Leu is an occupational physician.  Both Dr Mourad and Dr Le Leu’s evidence is that stenosing tenosynovitis can be diagnosed by general practitioners, specialists and surgeons.  Dr Mourad told the Tribunal that the reliability of findings on causation depends on the practitioner’s qualifications and experience.  On the basis of this evidence, the Tribunal finds that all four medical experts are qualified to make a diagnosis of the Applicant’s condition.  It further finds that Dr Mourad and Dr Vrancic, as experienced orthopaedic surgeons, are qualified to make reliable findings in relation to the causal factors of the condition, as is Dr Le Leu who is an experienced occupational physician.

11. On the basis of the evidence before it, particularly the evidence of the medical experts, the Tribunal makes the following findings in relation to the Applicant’s claimed condition, and whether his employment was a significant contributing factor.

    (a)Does the Applicant suffer from the claimed condition ‘trigger finger (right)’?

12. The Tribunal is satisfied that, on the basis of the evidence of the medical experts, the Applicant suffers from stenosing tenosynovitis (trigger finger) (right).  It makes this finding relying on the opinions of the Applicant’s general practitioner, Dr Martin, his orthopaedic surgeon, Dr Vrancic, and the two independent experts, Dr Le Leu and Dr Mourad, all of whom have diagnosed the Applicant as suffering from this condition.  In making this finding, the Tribunal has also had regard to the oral evidence of Dr Le Leu and Dr Mourad who confirmed that general practitioners, specialists and surgeons are qualified to diagnose stenosing tenosynovitis.

13. The Tribunal is satisfied that this condition is an ‘ailment’ as defined in s 4 of the SRC Act. The evidence of the medical experts is that stenosing tenosynovitis is an idiopathic condition of unknown cause affecting the finger(s) resulting in inflammation and triggering. The Tribunal is therefore satisfied that the Applicant suffers from a physical ailment within the terms of s 4 of the SRC Act.

    (b)Was the ailment ‘contributed to, to a significant degree’, by the Applicant’s employment?

14. For the Applicant’s ‘ailment’ to be a ‘disease’ as defined in s 5B(1) of the SRC Act, it must have been contributed to, to a significant degree, by the Applicant’s employment with the AFP.

15. As Mortimer J noted in Comcare v Reardon [2015] FCA 1166 at [75] ‘… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it’.

16. In Power, Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’.  Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’,  at [78] and further that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’ at [82].

17. The Tribunal has had regard to the evidence before it, particularly the expert medical evidence, and finds for the reasons detailed in the following paragraphs that the Applicant’s ailment was contributed to, to a significant degree, by the Applicant’s employment.

    Applicant’s work duties

18. The evidence before the Tribunal, including the oral evidence of the Applicant, is that prior to his left hand injury his work time was evenly split between office based duties and out of office duties.  He was working at least 40 hours per week which sometimes would extend to 80 hours or more when he was required to work at larger events.  His office duties primarily involved typing and computer-based research, which relied on multi-tasking and mouse work.

19. The Tribunal notes that when the Applicant returned to work after six to eight weeks off following the injury to his left hand he was working less hours than prior to his injury.  He gradually increased his hours per week from approximately 10 hours to 32 hours during the period March to July 2015.  The Applicant was restricted to office-based administrative duties as a Blood and Breath Officer which involved collecting and processing blood samples.  He completed necessary paperwork and computer-based work using his right (non-dominant) hand.  He was later assigned as the Officer in Charge of the Traffic Operations Branch.  All of his work in this role was computer-based with small amounts of written work.

20. On the basis of the evidence before it, the Tribunal finds that during the period March to July 2015 the Applicant was engaged in administrative duties which required the use of his right (non-dominant) hand at work in a manner different in function and for longer periods than that for which it had been used prior to his left hand injury.  He needed to use his right hand to perform all work functions requiring typing, writing, signing, mouse-use and keyboard operations.  Prior to his left hand injury, his non-dominant right hand would have been used for a much more limited range of functions and much less frequently when performing his office based work.  The Tribunal finds that the use of the Applicant’s right hand during the course of his employment during the period March to July 2015 was considerably more frequent and much different to the manner in which he used it prior to his left hand injury in late January 2015.

    Stenosing Tenosynovitis (Trigger Finger)

21. The following information is before the Tribunal from the AMA Guides to the Evaluation of Disease and Injury Causation (2^nd edition, 2013) in relation to Trigger Digits:[55]

    Triggering of upper-limb digits may occur when the flexor tendon and/or sheath is enlarged, the A1 pulley is narrowed or both.  Inflammatory swelling of the tendon sheath and resultant stenosing tenosynovitis may be the most common cause of triggering.  The edema results in ‘pinching’ of the flexor tendon at the A1 pulley, which in turn causes a nodule to form within the tendon when fibers bunch up and lost their normal spiral arrangement.  The inflammation of the tenosynovium may be primary eg with rheumatoid arthritis or gout.  However metabolic disorders such as diabetes mellitus and amyloidosis can cause connective tissue changes with similar synovial enlargement.  The inflammation can also be secondary due to irritation of the tenosynovium as an enlarged tendon passes through the pulley.  Possible causes of tendon enlargement include scarring from a partial tendon laceration and idiopathic nodule formation.  Less commonly, occupational or avocational activities can cause inflammation and triggering. Blunt trauma is another possible but unusual cause.  Many cases of trigger digit are idiopathic (of unknown cause). (emphasis added).

    [55] Exhibit R2.

    Causal factors and work contribution

22. The evidence before the Tribunal in relation to the Applicant’s condition, particularly the contribution of employment factors, is not concurrent between the medical experts.  Three doctors (Dr Martin, Dr Vrancic and Dr Le Leu) accept that stenosing tenosynovitis is usually idiopathic, but that overuse of the hand can exacerbate or worsen the condition. Dr Martin, Dr Vrancic and Dr Le Leu are in agreement that the increased use of the Applicant’s right hand to perform his work duties during the period March to June 2015 significantly contributed to the Applicant’s condition.

23. Dr Vrancic initially formed the view in September 2015 that the Applicant’s right index finger flexor tenosynovitis was coincidental rather than compensatory as it ‘uncommonly affects a single digit as a non-infective process’ and is rarely caused by overuse.[56]  However in February 2016, following a further consultation with the Applicant, Dr Vrancic altered her earlier view and reported that the Applicant’s condition had been ‘exacerbated by his overuse of his right hand’ and was now ‘severely symptomatic’.[57] 

    [56] T42, 113.

    [57] T71, 200.

24. Dr Leu Leu agrees with Dr Vrancic’s February 2016 opinion that the Applicant’s condition was made ‘significantly worse’ or had been ‘exacerbated’ by the Applicant’s overuse of his right hand at work.  When he was given more information about the Applicant’s work duties following his return to work in March 2015, Dr Le Leu agreed that it was ‘less probable’ or ‘only possible’ that the Applicant’s use of his right hand would have ‘exceeded its limit’ or reached the ‘threshold’ of overuse for symptoms to manifest.

25. Dr Mourad differs from Dr Le Leu and Dr Vrancic in that his view is that the pathology of stenosing tenosynovitis occurs simultaneously with the symptoms, and that the onset of the condition is instantaneous rather than gradual.  The onset occurred in early July 2015 when the symptoms first presented.  In his opinion, the condition is unlikely to be due to overuse or an external trigger and is more likely to be related to constitutional factors. In his first report in August 2017, Dr Mourad stated that the Applicant’s condition was not a consequence of overcompensation or overuse of his right hand in the work environment.  He maintained this view in his second report dated July 2018, opining that the Applicant’s condition was not significantly contributed to by his employment.  In his oral evidence, he accepted that it is not impossible for stenosing tenosynovitis to be contributed to by overcompensation.

26. Having regard to the medical evidence before it, and for the following reasons, the Tribunal prefers the views of Dr Vrancic and Dr Leu Leu, which are endorsed by Dr Martin, in relation to the contribution of the Applicant’s employment to his condition.

27. Dr Vrancic is an experienced orthopaedic surgeon who first saw the Applicant in April 2015 when she provided an opinion and treatment for his left hand injury.  She subsequently operated on the Applicant’s left hand in July 2015 and later saw him on several occasions including in September 2015 and February 2016 when she provided reports on his right hand stenonsing tenosynovitis condition.  Dr Vrancic took a full medical history of the Applicant, and did not record any primary causal factors for his condition such as rheumatoid arthritis, gout or diabetes.  Whereas Dr Vrancic’s initial view in September 2015 was that the condition was coincidental rather than compensatory, on further review and consideration she concluded in February 2016 that the Applicant’s overuse of his right hand at work contributed to the condition.   The Tribunal notes that Dr Vrancic’s opinion accords with the extract above from the AMA Guides to the Evaluation of Disease and Injury Causation which states ‘[l]ess commonly, occupational or avocational activities can cause inflammation and triggering.’[58]Whereas it is ‘rare’ or ‘uncommon’ for the condition to caused by overuse, it is not unheard of.

    [58] Exhibit R2.

28. Dr Le Leu concurs with the opinion of Dr Vrancic in relation to the contribution of the Applicant’s employment to his condition.  Whereas he was challenged on his assumptions about the amount of work the Applicant was undertaking during March to June 2015 which led him to concede it was ‘less probable’ or ‘only possible’ that the Applicant’s use of his right hand would have ‘exceeded its limit’ or reached the ‘threshold’ of overuse for symptoms to manifest, he maintained his view that there was a causal link between the condition and the Applicant’s employment.

29. Dr Martin, the Applicant’s general practitioner, who saw the Applicant regularly in relation to both his left hand injury and his right hand condition during the relevant period, agrees that the Applicant’s employment contributed to his condition.  Dr Martin concluded as early as August 2015 that the Applicant was suffering from ‘R index finger flexor tendonitis (sic) (due to compensation)’[59] and he maintained this view in his subsequent reports.  The Tribunal notes that, as a general practitioner, Dr Martin is less well qualified to make findings as to causation, and for this reason it has placed less weight on his opinion in this regard.

    [59] T184, 589.

30. Dr Mourad, like Dr Vrancic, is an experienced orthopaedic surgeon.  He saw the Applicant on one occasion and provided two written reports based on his examination.  His view that the Applicant’s condition is more likely to be constitutional is not supported by the Applicant’s medical history, which does not include rheumatoid arthritis, gout or metabolic disorders such as diabetes mellitus and amyloidosis.  Dr Mourad accepted in his oral evidence that he agrees with Dr Vrancic that it is not impossible for overcompensation to contribute to stenosing tenosynovitis, although in the Applicant’s case he believes this is unlikely. 

31. Having regard to the evidence of the medical experts, the Tribunal is satisfied, on the balance of probabilities, that the Applicant’s overuse and/or different use of his right hand to perform his work duties during the period between March and July 2015 contributed to his stenosing tenosynovitis condition.  It further finds that as there were no constitutional or metabolic disorders that may have caused the condition, and no other factors of relevance that may have contributed to its onset, the Applicant’s employment contributed to a significant degree to his condition.

32. For these reasons, the Tribunal is satisfied, on the balance of probabilities, that the Applicant’s employment contributed to, to a significant degree, his condition. Accordingly, the Applicant’s ‘ailment’ satisfies the definition of ‘disease’ in s 5B(1) of the SRC Act and is a compensable ‘injury’ as defined in s 5A(1) of the Act.

33. Accordingly, the Reviewable Decision was made in error and should be set aside and substituted for the determination made on 5 August 2016 accepting liability under s 14 of the SRC Act.

    DECISION

34. The Reviewable Decision is set aside and the original determination dated 5 August 2016 is reinstated.

112.    I certify that the preceding 111 (one-hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

………………………………………

Associate

Dated: 4 October 2019

Date(s) of hearing:	17 – 18 June 2019
Counsel for the Applicant:	Mr Jason Moffett
Solicitor for the Applicant:	Mr Walter Hawkins and Ms Kelly Morrow, Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Michael Snell
Solicitors for the Respondent:	Mr Abe Ghaleb, Lehmann Snell Lawyers