LHHL and Comcare (Compensation)

[2018] AATA 3272

LHHL and Comcare (Compensation) [2018] AATA 3272 (7 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0688

Re:LHHL

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Date:7 September 2018

Place:Hobart

The decision under review is set aside and remitted to the respondent to give effect to these reasons.

..................................[sgd].................................

Ms S Taglieri SC, Member

CATCHWORDS

COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – nature of original compensable injury – whether effects of compensable injury are continuing – subacromial bursitis – secondary complex regional pain syndrome – decision under review set aside and remitted.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 16 & 19

CASES

Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536
Department of Defence v Trudie Anne Speed [1993] FCA 130
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mellor v Australian Postal Corporation [2009] FCA 504; (2009) 108 ALD 159
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Su v Comcare [2011] AATA 934
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253
Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316

REASONS FOR DECISION

Ms S Taglieri SC, Member

7 September 2018

INTRODUCTION AND BACKGROUND

1. The applicant has been employed at the Australian Taxation Office (the ATO) since 2007 and has engaged in various clerical and computer-based duties in such employment.

2. In 2009 the applicant experienced symptoms of pain and discomfort in her spine while performing computer-based work in her employment. For the purpose of this review, the applicant claims that when she experienced spinal pain in 2009, she also had symptoms in her right shoulder. An ergonomic assessment of the applicant’s work station was undertaken by her employer[1] but no claim for workers’ compensation was made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). It seems likely that there was no incapacity for work at this time, either relating to her spinal or shoulder symptoms.

   [1] T3, pp 5-8.

3. In 2011 the applicant was transferred to the superannuation area of the ATO. She claimed that the work in this area largely involved regular and prolonged computer-based work, particularly using a mouse. The applicant claims that in approximately April 2011 she again experienced symptoms of pain in her right shoulder, which gradually deteriorated and she sought medical treatment and subsequently had time off work.

4. The applicant made a claim for compensation on 4 October 2011 in respect of a right shoulder injury (the compensation claim).[2] The compensation claim was initially accepted and the determination made on 25 October 2011 identified the compensable condition to be one that was deemed to be suffered on 6 September 2011 and was characterised as an ailment, namely right shoulder bursitis.[3]

   [2] T8.

   [3] T11.

5. Aside from suffering the right shoulder injury, the parties were agreed that in late October 2011 the applicant experienced severe symptoms involving her right upper limb, including her hand, which was later diagnosed as complex regional pain syndrome. This was treated by the respondent as a secondary condition resulting from the compensable injury.

6. Various payments of compensation under the Act were made to the applicant between October 2011 and October 2016 in respect of the right shoulder injury and complex regional pain syndrome. However the respondent then made a determination, which was affirmed on 13 December 2016,[4] that the applicant had no present entitlement to medical expenses and incapacity payments for the compensable condition under ss 16 and 19 of the Act.[5] The respondent did not reconsider the original determination to accept liability made on 25 October 2011.

   [4] Reviewable decision, T51.

   [5] T48.

7. At the hearing before the Tribunal the respondent contended, in effect, that it was never liable for the right shoulder injury that it had previously deemed to have been a compensable injury and consequently, if the complex regional pain syndrome was a secondary condition to the compensable condition, the incapacity and need for treatment resulting from either condition did not entitle the applicant to receive compensation under the Act.

   THE TRIBUNAL’S JURISDICTION ON THE REVIEW

8. As the respondent did not conduct a reconsideration of its own motion of the determination of liability in 2011 for a condition affecting the applicant’s right shoulder, the Tribunal does not have jurisdiction in relation to whether there was liability for an injury at all in 2011.

9. Rather, the Tribunal is required to make findings of fact and law in respect of what was the injury for which liability was accepted under the Act in 2011. Secondly, it is required to determine whether the applicant still suffers from that injury or the effects of it such that she has a present entitlement to receive medical expenses and incapacity payments.[6]

   [6] See Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253.

   EVENTS IN 2009

10. During the hearing, the respondent focussed on the applicant’s claim that she suffered right shoulder symptoms as well as back/spine symptoms in 2009. It relied on the so-called absence of reference to the right shoulder in the ergonomic assessment undertaken at the time.[7] This approach was directed to discrediting the applicant’s evidence to persuade the Tribunal that her evidence was unreliable.

    [7] T3.

11. The focus on the applicant’s evidence about shoulder symptoms in 2009 does not particularly assist the Tribunal in determining the review which relates to the nature of the injury she suffered in 2011. In any event, to the extent that it might be necessary to consider the reliability of the applicant’s evidence about the symptoms she suffered in 2009 while undertaking her employment, the Tribunal notes that the ergonomic assessment of Ms Omond does reference indirectly that the applicant was experiencing right-handed issues due to mouse-use and adjustments were noted as required.[8]

    [8] T3, p 7.

12. Notwithstanding the above, there was certainly no claim for compensation in respect of a right shoulder injury in 2009 and the evidence adduced by both the applicant and respondent about symptoms and employment in 2009 are not particularly relevant to the Tribunal in discharging its function on this review.

13. The Tribunal broadly accepted the evidence of the applicant as truthful and reliable in respect of relevant issues. To the extent that there may have been some apparent inconsistencies,[9] they are largely explained or due to apparent misunderstandings of medical opinion or other matters.

    [9] As submitted and particularised in a typed document forming part of the respondent’s closing submissions.

    EVIDENCE BEFORE THE TRIBUNAL

14. The applicant gave evidence that in 2011 after transferring to the superannuation area of the ATO, the frequency, intensity and duration of computer-based work significantly increased by comparison to the duties she had been performing in 2010. In particular, the applicant’s evidence was that she was required to undertake extensive mouse-work in a position with her right shoulder forward and extended to her right because of the set-up of her workstation. This was said to be because she routinely had an A4 notepad positioned to the right of her keyboard, with her mouse to the right of the A4 notepad.

15. The applicant also gave evidence that the position of the telephone on her workstation meant that she was required to reach forward to the phone with her right upper limb to take and terminate a call.

16. The applicant tendered into evidence an office minute dated 2 August 2011 referring to a Comcare investigation regarding a review of the Siebel system at the ATO.[10] This system was routinely used by the applicant when performing her duties in the superannuation area in 2011. Attached to the minute was a list of items for review, many of which were directed to investigating means of limiting or reducing the frequency and duration of mouse-work.

    [10] Exhibit A1.

17. The respondent did not seriously dispute the applicant’s evidence concerning the volume of mouse-work involved in undertaking duties on Siebel in the superannuation area. It certainly did not adduce any evidence to contradict the evidence of the applicant. Nor was any contradictory evidence led about the positioning of the mouse at the workstation when the applicant used it for her work in Siebel.

18. The applicant’s evidence was that after performing duties on Siebel she gradually developed worsening symptoms in her right shoulder and consulted Dr Laura Reid at the Barrack Street Practice on 6 September 2011. The history given by the applicant to Dr Reid was that, two weeks prior to the consultation, her right shoulder pain had worsened again and that she was unable to work.[11] The progress notes made by Dr Reid recorded that the applicant had pain in all directions anteriorly and posteriorly over the shoulder and referred to there having been some workplace modifications but not enough. This would appear to be a reference to the interventions that were initiated on 29 August 2011 when an injury management consultant, Kate Rutherford, conducted an ergonomic workstation assessment.[12]

    [11] Exhibit A2, p 40.

    [12] T5, pp 13-18.

19. The workstation assessment report prepared by Ms Rutherford did not wholly corroborate the applicant’s evidence but it did record a tendency of the applicant’s right shoulder to roll forward when doing computer-based work. This is significant for reasons that will become apparent when the medical evidence before the Tribunal is evaluated.

20. The respondent also sought to discredit the applicant’s evidence by reference to her statement that the majority of mouse-work was being done with her right hand. Ms Rutherford’s workstation assessment report included a history that the applicant was, at that time, using her left hand to operate the mouse.[13] The Tribunal is not persuaded that what was reported by Ms Rutherford in the table beside the entries relating to mouse is to be interpreted in the manner submitted by the respondent. In any event, Ms Rutherford noted that the use of the mouse in the left hand was to address aggravation of symptoms from extended mouse use. As the presenting symptoms at the time involved right shoulder complaints it seems likely, and the Tribunal infers that, the applicant had been using her right hand for mouse-work in the weeks leading up to the assessment by Ms Rutherford.

    [13] T5, p 15.

21. The outcome of the workstation assessment included that the applicant had been encouraged and reminded to make regular postural adjustments when undertaking her work at the workstation. The logical inference from this recommendation is that the author of the report considered that the posture adopted by the applicant when undertaking her work at the workstation involved a risk of causing painful symptoms in the right shoulder. This too is consistent with, and relevant to, the medical evidence given at the hearing, as discussed below.

22. The applicant’s evidence was that she had time away from work after she was initially seen by Dr Reid and that she also consulted her usual general practitioner, Dr Patricia Shephard. When seen by Dr Shephard on 20 September 2011, the history taken was that the applicant had noticed right shoulder pain at work while performing duties at the workstation and that there was some recovery from the shoulder pain, though not settling completely, on weekends.[14] There was restriction in flexion and extension, restricted abduction and significant pain in the subacromial region of the shoulder. A workers’ compensation certificate was issued by Dr Shephard on 20 September 2011. Dr Shephard then initiated investigation by ultrasound, x-ray of the right shoulder and steroid injection to the right shoulder.

    [14] A2, p 41.

23. By late October 2011 the applicant appeared to have had some improvement in her symptoms, particularly with the steroid injection.[15] The applicant gave evidence that she returned to work on a return to work plan but within two days had experienced acute symptoms in her right arm and hand in association with clearing her emails, which entailed both keyboard and mouse-work. The applicant’s evidence is corroborated by the notes of history made by Dr Shephard on 7 November 2011.[16]

    [15] A2, p43.

    [16] Exhibit A2, p 43.

24. The applicant gave evidence that after the onset of the acute and debilitating symptoms in her entire right upper limb, her symptoms have very slowly improved and she has returned to performing restricted duties at the ATO.

25. Between approximately November 2011 and May 2012, the applicant was seen by Dr Steve Reid, a sports physician, and Dr Graeme Jones, a rheumatologist. The respondent also referred the applicant to an occupational physician, Dr Matthew Paul, and a consultant rheumatologist, Associate Professor Leslie Barnsley.

26. Dr Reid and Dr Paul were not definitive in respect of the nature of the condition from which the applicant suffered but both agreed that she was totally incapacitated for work.[17] The search for a definitive diagnosis of the applicant’s right upper limb condition continued and in March 2012 the respondent had her assessed by Associate Professor Barnsley, who agreed that the applicant was not fit to work, but he too was unclear about diagnosis.[18]

    [17] See T12 & T16-T18.

    [18] T12, p 50.

27. The Tribunal received all the T documents into evidence. An evaluation of the medical opinions not otherwise specifically referred to above demonstrated consensus amongst the medical experts who saw the applicant either for treatment purposes or independent assessment. That consensus being that, by 2012, the more likely diagnosis for the applicant’s presenting symptoms was a shoulder/hand or complex regional pain syndrome, and that the applicant was not fit for work.[19]

    [19] T21, p 71.

28. Dr Vivien Wright, a general practitioner qualified to undertake acupuncture treatment, had also been treating the applicant and she opined that the applicant was suffering from a complex regional pain syndrome affecting her right hand, rather than an inflammatory or rheumatic condition.[20]

    [20] T22, p 78.

29. At the request of the respondent the applicant was also assessed by Dr Bernadette Trifiletti, an occupational physician, in June 2012 and March 2013. Dr Trifiletti was of the opinion that that the applicant was suffering from complex regional pain syndrome affecting her right upper limb and that this condition had superseded the subacromial bursitis affecting the right shoulder, which was the original compensable condition.[21] In her report, Dr Trifiletti stated that complex regional pain syndrome type I ‘can occur after some sort of injury leading to immobilisation’.[22] Regarding a potential mechanism for the complex regional pain syndrome Dr Trifiletti stated that ‘it is uncertain but some proposed mechanisms are that there is sensitisation occurring coupled with local inflammation’.[23] Dr Trifiletti considered that the applicant remained incapacitated for work in June 2012.

    [21] T23, p 90.

    [22] T23, p 90.

    [23] T23, p 90.

30. Dr Trifiletti did not address what, if any, causal relationship there was between the subacromial bursitis and complex regional pain syndrome but rather simply observed that they were two conditions from which the applicant suffered. Further, she did not address whether the complex regional pain syndrome, which she considered to be the incapacitating condition, was related to the applicant’s employment.

31. In August 2012 the applicant was assessed by an orthopaedic surgeon, Mr Andrew Hanusiewicz.[24] He, like Dr Trifiletti, identified that there were two diagnoses: post-subacromial bursitis of the right shoulder and complex regional pain syndrome. Mr Hanusiewicz accepted that the subacromial bursitis was the trigger for developing complex regional pain syndrome, but he did not accept that the subacromial bursitis was work-related. Despite this, Mr Hanusiewicz agreed that the applicant remained incapacitated for work by virtue of the complex regional pain syndrome.

    [24] T25.

32. The respondent contended based on Mr Hanusiewicz’ opinion that the applicant engaged in repetitive and frequent right arm movement while grooming her horse. The suggestion being that horse grooming as opposed to the work duties were a significant contributing factor to the development of subacromial bursitis.[25]

    [25] T25, p 122.

33. In response to the respondent’s request for a report, Dr Shephard provided an opinion in relation to the relationship between the applicant’s subacromial bursitis and complex regional pain syndrome.[26] Dr Shephard opined that the applicant’s right shoulder subacromial bursitis diagnosed in September 2011 was caused by static loading in her employment, in particular the use of the right upper limb unsupported when doing computer-based duties. Dr Shephard referred to the causal mechanism being supported by documented literature and by the remission or improvement of symptoms when the applicant was not undertaking computer-based work during the working week, that is, on the weekends.

    [26] T31.

34. Dr Shephard stated that the subacromial bursitis was the trigger for complex regional pain syndrome and commented that this was the consensus reached by Mr Hanusiewicz, Dr Trifiletti and Dr Francis. Dr Shephard provided a more detailed report to the respondent dated 2 July 2013.[27]

    [27] T31.

    Evidence of Dr Francis

35. In a report provided to Dr Shephard dated 28 September 2012,[28] Dr Hilton Francis, a consultant rheumatologist, wrote that he considered that the applicant had a postural problem associated with static loading that was due to the employment duties. Dr Francis said that this caused subacromial impingement and secondary bursitis and that consequent to these conditions the applicant had developed a frozen shoulder in September 2011.[29] This history appears to accord with the cortisone injection treatment and rest following it before the applicant’s return to the ATO on a return to work program. Dr Francis attributed the complex regional pain syndrome to the duties performed by the applicant upon her return to work and said that there was a close link between the hand symptoms and the shoulder pain.[30]

    [28] T45.

    [29] T45, p 280 at [1]-[2].

    [30] T45, p 280.

36. However, when Dr Francis gave evidence orally before the Tribunal, somewhat surprisingly, his opinion about the causal relationship between the employment duties and the subacromial bursitis was far weaker. He stated:

    In essence, the summary – my assessment of this lady, she had a postural problem in her right shoulder. She tended to let the right shoulder drop down and forward in sustained posture – in sustained positions. That gives you a risk of a couple of things happening. First, it can predispose to developing subacromion bursitis in association with activity, but I would have said that’s only a minor component to the process. More importantly, it causes thoracic outlet syndrome. Now, with thoracic outlet syndrome you get the upper elements of the brachial plexus become (sic) impinged by the shoulder rolling down and forward for sustained periods. That causes an irritation to the nerve supply and the nerves that it affects in the upper brachial plexus characteristically are the nerves that supply those three fingers, exactly as she described. So she starts with a postural problem; she gets put in a position where she’s holding her arm in that position for an extended period of time; she’s irritating that nerve; she gets the symptoms into there and unfortunately then rapidly goes onto recruit a CRPS component.'[31]

    [31] Transcript, p 143, lines 14-28.

1. Later in his oral evidence, Dr Francis stated:

   DR FRANCIS: I didn’t regard the – the bursitis component as particularly relevant in the whole process. I don’t think it’s the starting point. I don’t think it’s relevant in a long term outcome. I don’t think it was the problem. The problem was her posture; static loading; nerve pain; CRPS. I don’t - - -

   MR HILLIARD: But you believe that the static loading, the posture, may have had a contribution to predisposing her to getting the bursitis condition?

   DR FRANCIS: Yes. But, as I say, I would have regarded that as like a second – a second process, not – not entirely relevant to the main thing I was seeing.

   MR HILLIARD: And the subacromion impingement you’ve described, so these are all things which were a constellation?

   DR FRANCIS: Yes.

   MR HILLIARD: They’re all related to the same cause?

   DR FRANCIS: Yes. Yes.

   MR HILLIARD: And you believe that she then went on to start developing a frozen shoulder, which you suspect was in about September?

   DR FRANCIS: Yes. Just because of the change in pain pattern escalating at that point, the nocturnal component, persistent component.

   MR HILLIARD: And then her condition of CRPS in her right hand or the full blown shoulder-hand syndrome, which started just before Christmas of last year?

   DR FRANCIS: Yes.

   MR HILLIARD: But you’ve talked about that being a dramatic onset of symptoms?

   DR FRANCIS: Yes.

   MR HILLIARD: And that was the commencement of the CRPS - - -

   DR FRANCIS: Yes.

   MR HILLIARD: - - - which by the time you saw her was her predominant incapacitating problem - -

   DR FRANCIS: Absolutely.

   MR HILLIARD: - - - of this constellation of problems, which had all come from the same problem?

   DR FRANCIS: Yes.[32]

   [32] Transcript, p 143, lines 46-47 & p 144, lines 1-29.

2. When cross-examined, Dr Francis agreed that the MRI scan performed on the applicant on 14 March 2012 demonstrated that she had old trauma to her right shoulder and degenerative changes in the shoulder.[33]

   [33] Transcript, pp 146-147.

3. Dr Francis was also cross-examined about the mechanism for development of bursitis. He agreed that it often developed when the arm was elevated above 45 degrees, causing impingement or a closing of the gap where the bursa is located. It was specifically put to Dr Francis that sitting at a desk doing typing, mouse-work or reaching for a phone was unlikely to cause bursitis and Dr Francis agreed.[34]

   [34] Transcript, p 148, lines 31-32.

4. When asked whether the postural problem to which he referred in his report to Dr Shephard would cause bursitis, Dr Francis stated ‘no’. He then clarified:

   a postural problem can predispose to bursitis, because you’re rolling the shoulder down and forward, which will actually narrow the space. So if you start doing activities if you have that posture yes you’re going to increase the risk of bursitis.[35]

   [35] Transcript, p 148, lines 44-47.

5. It was then put to him that the increased risk of bursitis due to the postural problem only existed ‘providing you’re lifting your arm above 45 degrees’ and Dr Francis agreed.[36] Dr Francis then went on to say that he did not think the bursitis was particularly important in anything that happened to the applicant subsequently. Rather, he considered that the postural problem associated with her work duties causing static loading resulted in complex regional pain syndrome. When asked about the relevance of the pain emanating from the bursitis to the complex regional pain syndrome and her continuing incapacity, Dr Francis stated that the pain ‘didn’t respond to an injection, so probably wasn’t relevant.’[37] However the Tribunal notes that Dr Francis’ assertion that the pain did not diminish in response to the injection of cortisone into the bursa is plainly incorrect as is evident from the contemporaneous progress notes made by Dr Shephard and the evidence of the applicant.

   [36] Transcript, p 149, line 1.

   [37] Transcript, p 149, lines 17-19.

6. Notwithstanding Dr Francis’ contradictory views about the relevance of bursitis to the development of complex regional pain syndrome by the applicant, it is clear that his opinion was consistent with other experts in the case in that complex regional pain syndrome develops as a result of a neural overload or neural sensitisation, which itself is a result of injury or pathology.[38]

   [38] Transcript, p 149, lines 29-31.

7. Dr Francis was emphatic that the complex regional pain syndrome was not secondary to the bursitis.[39] When asked whether bursitis could cause the complex regional pain syndrome he stated ‘no if she went onto develop a frozen shoulder specifically from bursitis, in rare cases you might, but bursitis is not going to cause CRPS.’[40] It is clear from the overall tenor of Dr Francis’ evidence that his view was that bursitis alone would not result in complex regional pain syndrome but in the context of a constellation of multiple factors (being a pathological bursitis, static loading from postures adopted in computer-based activities, particularly mouse-work, which probably leads to thoracic outlet syndrome with neural sensitisation of some structures affecting the right upper limb) a person could develop complex regional pain syndrome involving the right upper limb.

   [39] Transcript, p 150, line 5.

   [40] Transcript, p 150, lines 9-11.

8. Dr Francis was cross-examined about the nature of his report of 28 September 2012 being a treating doctor’s report to a general practitioner rather than a medicolegal report. He conceded that the nature of communication in his report to Dr Shephard was very different to what would be used for an independent medicolegal report. When it was put to him that, for the purposes of the treating doctors report, he had not investigated or considered causation in a forensic manner, Dr Francis stated ‘I always do in a medical assessment anyway’ but he then effectively conceded that he had not taken a detailed history of what other activities outside of work the applicant had been undertaking.[41] Accordingly, the Tribunal considered Dr Francis’ assessment of causation was lacking forensic rigour or was at least incomplete.

   [41] Transcript, p 150, lines 43-44 & p 151, line 2.

9. Dr Francis was also cross-examined about findings on an ultrasound dated 6 September 2011. He agreed that the findings did not reveal tendinopathy but showed the subacromial/subdeltoid bursa containing fluid and synovitis/thickening, demonstrating bunching on abduction and were consistent with the subacromial bursitis with impingement or, alternatively, adhesive capsulitis.[42]

   [42] Transcript, p 153, lines 34-39.

10. In relation to postural problems causing neural sensitisation of body structures, Dr Francis was emphatic that the ergonomics of the workplace in which the applicant performed her duties were causative. He then clarified that the postural issues did not cause the bursitis but that the applicant may have had bursitis that was a contributor, though not what he described as ‘significant major contributor’.[43]

    [43] Transcript, pp 155-156.

11. Dr Francis was re-examined about the apparent inconsistencies between the views expressed in his report to Dr Shephard and his oral evidence as described above:

    MR HILLIARD: Now, that postural problem of her shoulder rolling forward that you’ve referred to, and you say that if a person does that they can’t, and that’s because the shoulder becomes impinged at a lower angle?

    DR FRANCIS: Exactly, yes.

    MR HILLIARD: And there was some discussion of angles and that work – that having – there was a mention of 45 degrees?

    DR FRANCIS: As I say, that’s all fine. That’s for the subacromion impingement. As I say, the postural problem predisposed to two outcomes: one was a subacromion problem, which I don’t think was relevant in the outcome of her problem, but she had it; the second was the neurological problem and the CRPS, which was the dominant problem that I saw. And the fact that she had pain in the shoulder doesn’t mean the pain was due to the subacromion bursa. It can be just as easily related to the postural problem.

    MR HILLIARD: If she has pain in her shoulder, does that then, in your – does that normally then lead to a person having a further problem of posture with their shoulder?

    DR FRANCIS: They can, particularly – it was mentioned she was asked to rest after the injection. So people who get put in a sling or start protecting their – you know, doing that sort of thing, it tends to promote that postural problem, so in the long term it makes them worse. The most important thing when you’re looking after shoulders is the postural correction exercises and as you will notice in the last, third-last paragraph of my letter:

    I have shown her a little exercise to do to regain periscapular control. It is currently completely absent on the right.[44]

    [44] Transcript, p 158.

12. Dr Francis was also asked to clarify his opinion in relation to what types of activities with the right arm and shoulder involved abduction known to cause risk of bursitis. The effect of his evidence was that small repetitive arm movements anywhere above 45 degrees abduction were accepted to be causative of bursitis.[45] Dr Francis also explained that with a postural problem involving the rolling forward of the shoulder, the degree of the angle of motion likely to cause bursitis altered and he agreed that that was significantly so. When asked to explain how that worked Dr Francis stated that ‘because the space gets dramatically smaller, you impinge at a lot lower angle’[46] however he then stated that he would not have expected it, meaning subacromial bursitis, to develop, even with a really poor posture, at an angle less than 45 degrees.

    [45] Transcript, pp 159-160.

    [46] Transcript, p 160, lines 26-27.

13. When re-examined, Dr Francis gave evidence that particular activities may make symptomatic or aggravate symptoms of bursitis but he did not accept that the computer-based activities, particularly using a mouse for long periods of time, could have aggravated or made symptomatic the applicant’s bursitis. He repeated that the bursitis was coincidental and that people were getting distracted by this, and that it had no significance because the applicant’s symptoms did not improve with the injection. Once again the Tribunal observes that this is not the evidence of the applicant as corroborated by Dr Shephard’s records and it appears Dr Francis is mistaken. Dr Francis reiterated that the posture adopted when doing the computer-based activities involving the shoulder rolling forward probably caused thoracic outlet syndrome with neural sensitisation that, quite rapidly, led to the complex regional pain syndrome.[47]

    [47] Transcript, p 161, lines 31-47 onward.

14. There was evidence before the Tribunal concerning potential right shoulder/arm injury events outside of work, including a fall by the applicant onto her right arm and an incident while removing a horse float from a tow-ball.[48] As such, the Tribunal made enquiries of Dr Francis as to whether a fall onto an outstretched arm could cause injury to the thoracic outlet leading to neural sensitisation. Dr Francis rejected that proposition. He clarified however that a plexus injury could occur from a traumatic event, but that if such an injury occurred there would be immediate onset of symptoms of a neural or neurological nature, that is to say acute symptoms would usually or commonly be experienced at the time of the traumatic event. Dr Francis observed that in this case there was no immediate trauma preceding the onset of neuropathic-like symptoms in October/November 2011.

    [48] Exhibit A2, p 37-38 & Exhibit A11.

15. When questioned by the Tribunal in relation to the timeframe required for static or adverse postures with pain to lead to neuropathic involvement, Dr Francis stated that the period of time varied between people, even noting that thinner people tended to be at a higher risk than fatter people, but there was no specific timeframe. Dr Francis stated that there needed to be a building up of pain over a period of time. He considered that this requirement was satisfied in the applicant’s case because she had had increasing symptoms leading to a need to be off work, the cortisone injection and more time off work before experiencing an acute manifestation of the complex regional pain syndrome after returning to duties involving the static posture.[49]

    [49] Transcript, p 156, lines 31-34.

16. The Tribunal observes that the effect of Dr Francis’ evidence is that the employment duties, involving postural dysfunction on a background of degenerative changes in the shoulder, were capable of aggravating symptoms from the degenerative changes.

    Evidence of Dr Ruttenberg

17. Dr David Ruttenberg, an occupational physician, was called by the respondent to give evidence at the hearing. It was in reliance of his opinion that the respondent made the decision under review.

18. Dr Ruttenberg accepted that the applicant suffered from a complex regional pain syndrome that was causing incapacity for work and a need for treatment at the time of his assessments on 9 December 2014 and 18 February 2015. However it was not until Dr Ruttenberg provided a report of 1 May 2015,[50] that he addressed whether there was a causal relationship between the complex regional pain syndrome and her employment or whether it was a secondary effect of a work-caused subacromial bursitis (the original compensable condition).

    [50] T38.

19. Dr Ruttenberg’s view, both in his report of May 2015 and in his oral evidence, was that the complex regional pain syndrome had been a secondary development to the subacromial bursitis. On the basis of Dr Ruttenberg’s view, providing the subacromial bursitis was an injury within the meaning of the Act itself, the applicant would be entitled to compensation for complex regional pain syndrome as a resultant effect and injury.

20. In his report of May 2015 Dr Ruttenberg accepted the possibility that work activities might have aggravated the subacromial bursitis, depending on the amount of stretching required once symptoms were already present.[51] This opinion is highly material to this review given the applicant’s evidence that she frequently and repetitively had to stretch her right upper limb during each working day to perform her duties, particularly mouse-work and answering and terminating telephone calls.

    [51] T38, p 215.

21. However in respect of the duties the applicant performed Dr Ruttenberg then continued in his report to express the following opinion:

    Bursitis relates to inflammation of the bursa, and the symptoms commonly are not typically confined to this particular work role and sitting working at a desk. Her arm would not be moving significantly in any appreciable direction in this regard at an ergonomically appropriate setup work station. Conversely, hanging washing, brushing her hair or performing reaching actions in the home environment would be expected to cause increased pain symptomology.[52]

    [52] T38, p 215.

22. The opinion expressed above involves a comparative assessment of the range of stretching involved in the workplace duties and stretching in the domestic or home environment. It is difficult to understand how Dr Ruttenberg could make a comparative evaluation with accuracy as it does not appear that he took a detailed history of what amount of stretching with the right hand was involved in the computer-based and other duties the applicant performed. Nor did he perform a workplace visit to observe the duties being undertaken by the applicant.

23. Dr Ruttenberg’s reports of 10 December 2014, 27 February 2015 and 1 May 2015 contained generalised descriptions of the work the applicant performed but no specific history seems to have been taken about the extent of stretching involved.[53] Specifically, Dr Ruttenberg does not mention that the applicant was required to hold her right shoulder in a position stretched out to her right because of the positioning of the notepad beside the keyboard. Nor does he mention that the applicant was required to abduct her right shoulder when answering and terminating phone calls.

    [53] See T35, p 190 & T37, p 208.

24. Dr Ruttenberg reassessed the applicant on 24 August 2016 and produced a further report.[54] Following the assessment Dr Ruttenberg maintained that the applicant suffered from a complex regional pain syndrome secondary to the subacromial bursitis. The opinions expressed in this report did not particularly address the question of the cause of the applicant’s continuing condition and incapacity other than stating that ‘there was no evidence of subacromial bursitis as a result of typing and I have commented on this in detail previously.’[55]

    [54] Report dated 6 September 2016: see T43, p 235.

    [55] T43, p 243.

25. The respondent then provided additional documentary material to Dr Ruttenberg prior to the hearing before the Tribunal and Dr Ruttenberg prepared a further report, which was received in evidence.[56] In summary, Dr Ruttenberg maintained his view that any duties in the workplace relating to the computer, whether typing or mouse-work, were not capable of causing subacromial bursitis in the right shoulder. Dr Ruttenberg wrote that subacromial bursitis and shoulder impingement does not result from repeated use of a mouse without support of the arm in an outstretched position.[57] He maintained that the extent of abduction needed to be 60 degrees above the horizontal in order for there to be any association between reaching with the upper arm and subacromial bursitis. Dr Ruttenberg observed that there were no good quality peer-reviewed studies, such as Level 1, 2 or 3, that lend support to the theory that static loading, whether the arm is supported or not, causes bursitis.[58] He also dispelled the suggestion that typing at a keyboard for extended periods of time without arm support may have caused or contributed to the applicant’s subacromial bursitis.

    [56] Exhibit R14.

    [57] Exhibit R14, p 9.

    [58] Exhibit R14, p 9.

26. However, Dr Ruttenberg did acknowledge once again that work factors could aggravate an underlying or pre-existing subacromial bursitis but only in circumstances involving ‘forceful awkward and forceful repetitive-type postures’ with her arm at or above 60 degrees from the horizontal for significant periods of time.[59] Despite this, Dr Ruttenberg accepted that if the applicant was working in a compromised position at her workstation for two to four hours per day or 50% of the working day and her workstation was poorly ergonomically set up, given the existence of psychosocial factors it was quite plausible that her symptoms might have become exacerbated. Clearly Dr Ruttenberg was referring to symptoms of subacromial bursitis in expressing this opinion.[60]

    [59] Exhibit R14, p 10.

    [60] Exhibit R14, p 11.

27. Dr Ruttenberg then stated that if the employment duties contributed to subacromial bursitis then it was a minor contribution, if at all.[61] This opinion does not address the potential for the applicant’s duties to contribute to exacerbation of the underlying subacromial bursitis.

    [61] Exhibit R14, p 11 in response to Question I.

28. When Dr Ruttenberg gave oral evidence, he was asked to express his views in regard to the opinions of Dr Francis. He had read the transcript of Dr Francis’ evidence to the Tribunal. Dr Ruttenberg rejected the proposition that the applicant had experienced a thoracic outlet syndrome condition or brachial plexus injury of some nature (including irritation of the brachial plexus) as a result of the duties performed in the workplace. Dr Ruttenberg was of the opinion that a brachial plexus injury or irritation could occur with any traction-type trauma. He opined that computer-based work, particularly using a mouse to the right of an A4 notepad away from the body and keyboard, was not associated with a brachial plexus injury. Dr Ruttenberg was quite emphatic that he was unaware of any studies showing plexopathy or brachial plexus injuries due to office work.[62]

    [62] Transcript, p 268.

29. Dr Ruttenberg was also asked about whether the employment duties might have been consistent with causing thoracic outlet syndrome. He rejected the proposition and stated that he was unaware of a mechanism of injury between thoracic outlet syndrome due to posture of the shoulder or development of neural irritation and developing into a complex regional pain syndrome.[63]

    [63] Transcript, p 290.

1. Dr Ruttenberg was cross-examined at length in relation to the views he had expressed regarding the cause of the applicant’s subacromial bursitis and consequent complex regional pain syndrome. He conceded that the article in the Journal of Occupational Health[64] was peer-reviewed and supported the association between sustained typing work and changes in scapular position and consequentially in musculoskeletal problems in the shoulder region.[65] However, Dr Ruttenberg observed that the literature was generalised in respect of referencing musculoskeletal problems and it was not apparent that the authors were specifically identifying pathology or symptoms involving the condition of bursitis.

   [64] Exhibit A6, article entitled ‘Effect of Sustained Typing Work on Changes in Scapular Position, Pressure Pain Sensitivity and Upper Trapezius Activity’ by Se-Yeon Park and Won-Gyu Yoo (2013), referred to by Dr Sharman in his report dated 23 October 2017.

   [65] Transcript, p 276.

2. As a result of enquiries by the Tribunal, Dr Ruttenberg stated that he accepted that because of the computer work the applicant was doing in her employment (particularly mouse-work) she was likely to have been adopting a rounded-over shoulder posture for sustained periods of time and that in association with this she likely had experienced pain that, due to the prolonged nature of the hours and work she performed at the computer, may well have led to the experience of chronic pain.[66] This opinion appears to be entirely consistent with the views expressed in Dr Ruttenberg’s report in relation to the capacity for the employment duties to have caused exacerbation of pain related to the subacromial bursitis pathology.

   [66] Transcript, p 293-4.

3. However Dr Ruttenberg was not of the view that experiencing the pain for prolonged periods over a lengthy period of time likely resulted in the complex regional pain syndrome. In expressing this view he responded that:

   I don’t have the literature for that. That’s what I mean. I don’t have the literature for that. So I accept you have rounded – some people have rounded postures. I accept there may have symptoms; you would expect, as I said, that you would readjust so that you don’t then have pain. There’s a temporal relationship, but there is not enough literature to say, well, that causes complex regional pain syndrome.[67]

   Dr Ruttenberg’s response clearly is contingent on the assumption that a person would readjust their posture in the workplace so that the experience of pain is curtailed and would hence be unlikely to result in a chronic pain state with neural involvement.

   [67] Transcript, p 294, lines 12-17.

4. The Tribunal observes that if the exacerbation of pain is not temporary because there is not a correcting of the shoulder posture over the duration of the working day, it likely follows that the exacerbation of pain is not temporary or short-term. Instead, it becomes prolonged and persists over the hours, days and weeks of working at the computer-based duties in the suboptimal workstation set-up. Logically, and in a common-sense fashion, the experience of pain becomes chronic.

   Evidence of Dr Sharman

5. The applicant was assessed by Dr Peter Sharman, a consultant occupational physician, in September 2017. Dr Sharman produced medical reports dated 23 October 2017[68] and 28 May 2018,[69] the latter of which he provided after reviewing material from Dr Francis dated 28 September 2017.[70] In addition to his two reports, Dr Sharman prepared a critical analysis of various medical literature entitled ‘Is there a causal association between computer work and Subacromial Impingement / Rotator Cuff Tendonitis / Subacromial / Subdeltoid Bursitis?’[71]

   [68] Exhibit A3.

   [69] Exhibit A4.

   [70] See T45, referred to above at paragraph 35.

   [71] Exhibit A5.

6. Dr Sharman was called by the applicant and gave evidence at the hearing before the Tribunal. He considered that the applicant’s presenting symptoms were strongly suggestive of a complex regional pain syndrome complicating an initial, more localised shoulder disorder, likely bursitis or a brachial plexus irritation.[72]

   [72] Exhibit 3, p 14.

7. Dr Sharman said that the underlying problem was likely to be the altered shoulder biomechanics associated with sustained use of computers and reaching activities. In his initial report he opined that the workstation setup, as described by the applicant, was suboptimal, noting her need to stretch out for the mouse and telephone and the biomechanical implications such movements would have on her shoulder.[73] Similarly to the other medical witnesses, Dr Sharman cited the sustained static postures commonly associated with small joint movements as an important contributive factor in the development of this type of disorder.

   [73] Exhibit 3, p 15.

8. Disagreeing with Dr Ruttenberg’s conclusion, Dr Sharman instead relied on the temporal association between symptoms and certain sustained work duties as indicative of a causal relationship between the applicant’s work and her condition.[74]

   [74] Exhibit 3, p 15.

9. At the hearing, Dr Sharman remained of the opinion that Dr Ruttenberg conclusion did not adequately take into account the applicant’s work history and the relevance of this to her documented symptoms.[75] Dr Sharman also disagreed with Dr Ruttenberg’s opinion that 60 degrees abduction was required before there could be any association between the extent of abduction and development of subacromial bursitis. Further to this, Dr Sharman was of the opinion that:

   from my experience – and this is the reason for ergonomic recommendations that people using computers should have their arms as near as possible to vertical at their side – is that any degree of abduction or flexion of the shoulder can be significant, depending on – certainly the degree of abduction or flexion is important, but also other factors such as, you know, how long you hold your arms in those position, the tension of the muscles that are holding your arm in that position – there are a number of factors. So while once you get up to 45 or 60 degrees there is not much argument about there being very significant effects, I think the effects on the rotator cuff and other structures start at a much lesser angle than that.[76]

   [75] Transcript, p 176, lines 18-21.

   [76] Transcript, p 176, lines 33-42.

   Evidence of Dr Shephard

10. The applicant’s treating general practitioner, Dr Patricia Shephard, provided reports in connection with the applicant’s shoulder and upper limb condition, and also gave oral evidence before the Tribunal. Dr Shephard was of the opinion that the applicant suffered from subacromial bursitis and, secondary to that condition, complex regional pain syndrome involving her right upper limb. Dr Shephard had expressed the opinion that the subacromial bursitis had been caused by the employment duties, particularly use of the mouse with the right arm and hand without support for the right arm.[77]

    [77] See, eg, T31, p 156 and Transcript, p 236-7.

11. Dr Shephard was cross-examined about the articles she produced in support of her opinions and also the history of the applicant’s presentations over time.[78]

    [78] Exhibit T1, pp 281-349.

12. Dr Shephard was pressed at some length under cross-examination about the content of the literature she had annexed to her report to support her opinion. It was put to her that the articles did not convey specifically that there was a causal relationship between repetitive and prolonged computer-based activities (particularly mouse-work) and causation of subacromial bursitis. Dr Shephard properly conceded that there was no direct statement to this effect in the literature but she referred generally to the common substance of the statements in all of the various articles to the effect that static loading activities involving computer work undertaken by use of the upper limbs were known to have an association with upper limb pain and disorders. Dr Shephard considered that the articles supported her views because shoulder bursitis was a disorder involving the subacromial bursa, which was part of the anatomy of the upper limb.

13. It was put to Dr Shephard that, given the nature of her involvement in treating and supporting the applicant as her treating practitioner, her views were lacking objectivity. The Tribunal does not accept that Dr Shephard’s views lacked objectivity as was evident from concessions she made. However, it is mindful that Dr Shephard by virtue of her qualifications and training may be less qualified than the specialist physicians who gave evidence in the case.

    Other Evidence Received by the Tribunal

14. The respondent also tendered into evidence the report of Dr Graeme Doig, an orthopaedic surgeon, dated 2 May 2017 that was prepared following an assessment of the applicant on 6 April 2017.[79] Consistent with the opinions of Dr Ruttenberg, Associate Professor Barnsley, Dr Shephard and Dr Trifiletti, Dr Doig was of the opinion that the applicant had suffered subacromial bursitis in her right shoulder and secondary to that condition, had developed complex regional pain syndrome. In relation to causation of the subacromial bursitis he stated the view that because the ergonomic setup at work involved repetitive stretching at shoulder height then the work environment might have played a part in its development.[80] This view is not dissimilar to that of Dr Ruttenberg.[81]

    [79] Exhibit R5.

    [80] Exhibit R5, p 4 at [1] under the heading ‘Causation’.

    [81] See paragraph 54 onwards of these reasons for decision.

15. The evidence of the applicant was that she did perform repetitive stretching with her right limb when undertaking mouse-work and initiating and terminating phone calls during her employment. However these activities are unlikely to have involved stretching at shoulder height as the position of the mouse was at desk height and the position of the phone possibly at shoulder height, but probably not above it. This is apparent from the description of the ergonomics of the workstation given by the applicant in her evidence, some of which was conveyed by a demonstration she gave whilst sitting giving evidence in the witness box.

16. Dr Doig’s report is exceptionally brief in relation to the subject of causation and his views were not tested by cross-examination. The Tribunal therefore is of the view that Dr Doig’s report and the views are of less weight in the overall assessment of causation in this case. Dr Doig did not specifically address the causes of complex regional pain syndrome or the postural dynamics of the shoulder that were the subject of the evidence of the applicant and the experts who gave evidence before the Tribunal.

17. The Tribunal also received numerous medical literature articles from diverse and varied sources.[82] It is unnecessary to make specific reference to each of the articles in detail as Dr Shephard, Dr Francis, Dr Sharman and Dr Ruttenberg all gave evidence about the substance of the literature and the conclusions within it. It is sufficient to observe that the literature supports the proposition that repetitive and sustained computer-based duties, particularly mouse-work, are recognised as contributing factors in the causation of upper limb and shoulder pain and some recognised injuries or disorders. However, none of the articles contain the direct proposition that such activities alone, without other contributing factors, are likely to cause the condition of subacromial bursitis. The common conclusions arrived at in the literature cannot be ignored and have been taken into consideration in arriving at a conclusion in this review.

    [82] Exhibits A6-A10, A12 & R12-13.

    EVALUATION OF THE EVIDENCE AND FINDINGS

18. The evidence of the applicant, the demonstration she gave of the positioning of the keyboard and mouse, the content of the office minute and agreed aspects of the expert opinions persuade the Tribunal that the applicant’s duties probably involved upper limb repetitive stretching movements to the right side with rounded-forward shoulder posture while using the mouse for prolonged periods in the working day.

19. A critical evaluation of the various expert opinions demonstrates that none of the experts except Dr Shephard considered that the applicant had suffered subacromial bursitis with impingement solely because of the computer-based duties (particularly mouse-work) she performed in the superannuation area of the ATO in and after April 2011. Whilst all experts agreed that the applicant had subacromial bursitis with impingement in the relevant period, each had differing views in relation to whether that condition caused any incapacity or whether it was caused by her employment.

20. Dr Francis considered the subacromial bursitis and impingement from which the applicant suffered at the time was irrelevant to her presentation with pain in her shoulder and resulting incapacity. He attributed the pain and incapacity to rolled-over or forward posture of the right shoulder when undertaking her employment duties and considered that this had caused thoracic outlet syndrome, consequential neural symptoms and then manifestation of complex regional pain syndrome. If the Tribunal accepts Dr Francis’ opinion then the appropriate finding would be that the applicant suffered thoracic outlet syndrome, which was an injury within the meaning of the Act, and that secondary to that condition she suffered complex regional pain syndrome.

21. The Tribunal does not accept Dr Francis’ opinion. The views he expressed in his report to Dr Shephard varied to those given in oral evidence. He dismissed the relevance of subacromial bursitis to the clinical picture and symptoms leading up to and in September 2011. The Tribunal found Dr Francis’ evidence overall to be in part contradictory and at times confusing.  It also lacked forensic rigour as discussed at paragraph 44 above. Dr Francis did not explain how or why he had resiled from the position initially expressed in his report. The Tribunal is not persuaded that the applicant suffered thoracic outlet syndrome because of postures adopted in performing her duties.

22. Once Dr Francis’ views were tested by Counsel and the Tribunal, they were broadly consistent with those of Dr Ruttenberg and Dr Doig in so far as they related to the condition of subacromial bursitis and impingement. All three were quite emphatic that the applicant’s work duties did not cause subacromial bursitis and impingement.

23. For the above reasons and giving less weight to the opinion of Dr Shephard, the Tribunal is not satisfied that the condition of subacromial bursitis was a compensable injury or disease under the Act. However, this does not conclude the task required of the Tribunal upon conducting a review of the decision. The Tribunal must consider what injury the respondent accepted liability for following lodgement of the applicant’s claim, however it was described at that time.[83]

    [83] See paragraphs 8 & 9 above in these reasons for decision.

24. Section 5A and 5B of the Act define ‘injury’ and ‘disease’ as follows (omitting exclusions for reasonable administrative action which were not part of the contentions in this case):

    5A Definition of injury

    1In this Act:

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

    …

    5B Definition of disease

    1In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    2In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment;

    (e)any other matters affecting the employee’s health.

    This subsection does not limit the matters that may be taken into account.

    3In this Act:

    significant degree means a degree that is substantially more than material.

25. For the purposes of the definition of disease, the meaning of ‘ailment’ in s 4 of the Act is also relevant. It provides that ailment means ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.

26. The applicant’s right shoulder pain and restriction in 2011 developed over about four to six months before it became incapacitating, leading to the claim for compensation on 4 October 2011. Before this time, the applicant had long-standing and age-related changes in her right shoulder affecting the subacromial bursa and other components of the shoulder joint. She had also had two incidents in which there was a trauma of some imprecise kind to the right upper limb and/or shoulder, but with apparently no long term effects. In this context, the Tribunal is of the view that the condition that manifested during the four to six month period of employment in 2011, if compensable at all, could only fall within the meaning of an injury which is a physical disease or an aggravation of a physical disease.

27. As the definition of ‘disease’ includes an ailment or aggravation of an ailment, the ambit of a compensable disease is very broad, albeit that to be compensable the disease must be one to which employment has contributed to a significant degree.

28. Whether the applicant suffered a disease in 2011 involving her right upper limb which was significantly contributed to by employment or was aggravated to a significant degree by employment requires consideration of what is meant by ‘contribution to a significant degree’. This has been settled in law and it requires the contribution by employment to be substantially more than ‘material’.

29. In Su v Comcare[2011] AATA 934 at paragraphs 4-5 the requirement of contribution to a significant degree was expressed by the Tribunal as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn [2007] FCA 15:

    When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2).

    The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (footnote omitted)

30. The Tribunal must be satisfied on the balance of probabilities that contribution by employment at the ATO was to a significant degree and it ought not be left in the area of possibility or conjecture.[84] Further, whether employment contributed to a significant degree is a question of fact to be determined by the Tribunal in each case.[85]

    [84] Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316, 323.

    [85] Mellor v Australian Postal Corporation [2009] FCA 504; (2009) 108 ALD 159, [23].

31. A worsening or increase in symptoms of a non-work caused condition may constitute an ‘aggravation injury’ for the purposes of the Act and it is unnecessary for a worsening of pathology to be present.[86] If employment duties intensify symptoms, including pain, of an underlying condition and the intensification is longstanding, the authorities recognise this as falling within the meaning of an ‘aggravation’ compensable under the Act.[87]

    [86] Mellor v Australian Postal Corporation [2009] FCA 504; (2009) 108 ALD 159, [22]-[27] following Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369.

    [87] Tippett v Australian Postal Corporation [1998] FCA 335, 5.

1. After careful analysis of all of the expert opinions and in view of the findings at paragraph 83, the Tribunal is satisfied that the applicant suffered an aggravation of pre-existing and probably minimally symptomatic or asymptomatic but not incapacitating subacromial bursitis in the period leading up to September 2011. The aggravation of symptoms included progressively increasing pain in the right shoulder with restriction in movement. A significant contributing factor to the aggravation was the postural dysfunction and repetitive sideways stretching of the right hand, arm and shoulder for prolonged periods using her mouse at the workstation.

2. The Tribunal rejects the proposition that home, domestic and horse-related activities were the significant contributor to the increased and permanent experience of pain from aggravation of the subacromial bursitis in 2011. When these activities are assessed in reference to the duration and frequency of repetitive upper limb movements during employment, their relevance in the Tribunal’s view is far less.

3. The applicant continued to perform the work duties that were likely aggravating the right shoulder degenerative pathology on a full-time basis and continuously between April and September 2011. Accordingly it is likely that she suffered chronic pain in the shoulder and upper limb due to the continuing duties which were aggravating the underlying pathology and led to worsening of symptoms of subacromial bursitis and impingement.

4. The Tribunal is satisfied that the applicant continued to experience chronic pain from the aggravation of subacromial bursitis, which in turn led to neurological dysfunction and dramatic onset of swelling in her right upper limb when she returned to duties on a return to work program in late October 2011. At this time, she suffered complex regional pain syndrome as a secondary resulting condition. This conclusion is not inconsistent with the opinion of Dr Ruttenberg and other experts who gave evidence. It is also supported by the medical literature received in evidence which identified repetitive and prolonged upper limb use, static and/or rolled over shoulder postures as risk factors for injury to shoulder and upper limbs disorders. These risk factors applied in relation to the work the applicant did, as is quite evident from the ATO’s office minute.[88]

   [88] Exhibit A1, referred to above at paragraph 16.

5. Although Dr Ruttenburg was willing to accept the possibility that the employment duties exacerbated the underlying subacromial bursitis, he was unwilling to agree that this could lead to neural sensitisation and complex regional pain syndrome.[89] However, in evaluating his evidence, that of other experts and the medical literature received in this case, the Tribunal has been persuaded that the employment duties, particularly mouse work, significantly contributed to the aggravation of the applicant’s underlying subacromial bursitis, which most experts then agreed was an operative precondition to development of complex regional pain syndrome. In arriving at this conclusion, the Tribunal has been guided by the following statements which guide decision makers about drawing inferences as to causation but which, in the Tribunal’s view, apply equally to drawing inferences about whether there is significant contribution.

   [89] See above at paragraph 62 of reasons for decision and the transcript, pp 293-4.

6. In Seltsam Pty Limited v McGuiness [2000] NSWCA 29, Spigelman CJ stated at [79] that:

   Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.

7. In Department of Defence v Trudie Anne Speed [1993] FCA 130, Cooper J accepted that there was a greater chance of infection to those working with people suffering from the viral illness in a hospital environment than to members of the general public at large (at [25]). This conclusion was sufficient additional material to draw the inference that the virus was contracted at work (at [26]).

8. Further, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242, Herron CJ stated:

   … if medical science is prepared to say it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable.  It is only when medical science denies that there is any such connection that the judge is not entitled in such a case to act on his own intuitive reasoning.  It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.

9. The Tribunal finds that the respondent originally accepted liability to pay compensation for an injury under the Act, being aggravation of subacromial bursitis. The Tribunal is satisfied that the employment duties operated to permanently intensify the symptoms of the subacromial bursitis to render the applicant incapacitated. As the condition of complex regional pain syndrome of the right hand and upper limb resulted from this, the Tribunal finds that the respondent also accepted liability for this as a secondary condition.

10. To the extent that the respondent contended that the applicant’s complex regional pain syndrome resulted from either a fall onto an outstretched arm or traction on the right arm during the incident with the horse float, this is rejected. The evidence of the experts in support of this contention was limited, speculative and as observed previously at paragraph 91 of these reasons, there appeared to be very minimal physical effects from these incidents.

11. Whether or not the reviewable decision ought to be set aside is dependent on whether the Tribunal finds that, at the time of the reviewable decision, the applicant was no longer suffering the effects of either the aggravation of subacromial bursitis or complex regional pain syndrome.[90]

    [90] See, eg, Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1, 6; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 516;and Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29, 33.

12. On the basis of the evidence before the Tribunal, it is satisfied that the applicant was still suffering the effects of complex regional pain syndrome and continues to be incapacitated by virtue of that condition, although she is fit for suitable restricted duties. There appeared to be broad consensus amongst the medical experts that the original compensable condition had been superseded by complex regional pain syndrome. There was no evidence that the aggravation of subacromial bursitis and impingement was causing incapacity for work or a need for medical treatment at the time of the reviewable decision.

13. The Tribunal is satisfied on the evidence of the applicant and the medical experts that she is able to perform sedentary duties in her employment at the ATO but requires modifications to the duration and frequency in which she undertakes her ordinary duties of employment.

14. The medical opinions were to the effect that the applicant requires continuing treatment for her complex regional pain syndrome. In particular, periodic review by her general practitioner at reasonable intervals and simple analgesia for pain. It would appear that although the applicant had physiotherapy in the past for a significant length of time she has now maintained a self-managed exercise program that, in combination with activity restriction, has avoided deterioration of her symptoms. For this reason it would appear unnecessary for the applicant to undertake physiotherapy treatment.

15. In view of the insidious nature of complex regional pain syndrome, it may be that the applicant will require specialist medical input and/or other medication or treatment. However this is speculative and the Tribunal makes no finding that these were reasonably required and necessary at the time of the reviewable decision.

    DECISION

16. The Tribunal is satisfied that the reviewable decision was erroneous in that it concluded that the applicant no longer suffered from the effects of a compensable condition. The Tribunal is of the view that the applicant continued to suffer from the effects of the compensable condition secondary complex regional pain syndrome. For these reasons the decision under review is set aside and the matter is remitted to the respondent to give effect to the determination of the Tribunal.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Ms S Taglieri SC, Member

..................................[sgd].................................

Associate

Dated: 7 September 2018

Date(s) of hearing:	24-25, 28-29 & 31 May 2018
Date final submissions received:	31 May 2018
Counsel for the Applicant:	Mr B Hilliard
Solicitors for the Applicant:	Slater and Gordon
Counsel for the Respondent:	Mr C Hobbs
Solicitors for the Respondent:	Australian Government Solicitor