Manoharan v American Express Australia Limited
[2008] NSWWCCPD 110
•3 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Manoharan v American Express Australia Limited [2008] NSWWCCPD 110 | ||||
| APPELLANT: | Faye Antonette Manoharan | ||||
| RESPONDENT: | American Express Australia Limited | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC1631-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 12 June 2008 | ||||
| DATE OF APPEAL DECISION: | 3 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Injury; causation; carpal tunnel syndrome; whether the worker discharged the onus of proof | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | P K Simpson & Co | |||
| Respondent: | Bartier Perry | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination dated 12 June 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. | ||||
| The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. Costs of the first arbitration and of the second arbitration are to follow the outcome of the second arbitration. | |||||
BACKGROUND
This case concerns a claim for weekly and lump sum compensation by Faye Manoharan (‘Ms Manoharan’) against American Express Australia Limited (‘American Express’). Ms Manoharan alleges that she developed carpal tunnel syndrome as a result of performing repetitive keyboard and data entry work in the course of her duties with American Express between 1 April 2003 and 14 March 2005.
Whilst American Express’ insurer initially accepted provisional liability, it ultimately denied the claim by letter dated 25 July 2006. Ms Manoharan’s Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 5 March 2008. In it she sought weekly compensation from 14 March 2005 to date and continuing, lump sum compensation, and hospital and medical expenses.
By its Reply filed on 20 March 2008, American Express disputed the following issues:
(a)injury;
(b)that employment was not a substantial contributing factor to any injury;
(c)incapacity, and
(d)the reasonableness of, or need for, medical and related treatment.
A Commission Arbitrator heard the claim on 27 May 2008 and, in a reserved decision delivered on 12 June 2008, made an award in favour of American Express.
By an appeal filed on 3 July 2008, Ms Manoharan seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding “no injury pursuant to s9 of the Workers Compensation Act 1987”;
(b)considering that work was not a substantial contributing factor to Ms Manoharan’s wrist and arm condition, and
(c)failing to take into account the evidence available on injury and misdirected himself as to its effect.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
THE EVIDENCE
Ms Manoharan was born in Sri Lanka in 1954 and is currently 53 years of age. She came to Australia in 1987 and worked with ANZ Bank Limited in various positions from September 1987 until 1996. In May 1996, she started work with American Express as a customer service analyst. Her classification varied over time and her last position, which she started in September 2004, was as a senior analyst – credit risk operations. This job required her to liaise with customers, review customer-spending habits while negotiating alternative/additional spending limits, and advise customers of any breaches of the terms and conditions of their card. At paragraph four of her statement of 15 April 2008, Ms Manoharan described her duties as follows:
“I used to sit at a desk and wear headphones; the phone would be on autodial and auto answer and I sat at a computer screen which brought up a lot of credit information; I always felt under a lot of pressure at times to get things done and even though I was not a trained typist, I spent a lot of time typing with both hands.”
Her statements do not indicate when her symptoms started, but merely state that she hurt her “wrists, hands and arms as a result of repetitive keyboard data entry work and maintenance of files” (paragraph four of Ms Manoharan’s statement of 31 January 2008) at American Express’ premises at Liverpool Street, Sydney. The vague and imprecise nature of her evidence has made the resolution of this matter much more difficult than should have been the case.
Ms Manoharan saw her general practitioner, Dr Short, on 2 November 2004, who apparently prescribed analgesics and diagnosed swelling and inflammation around the wrist joints (see history recorded by Dr Nash, 15 August 2007, page one). On 7 December 2004, she saw Dr Iyengar, a general practitioner at the same practice, who diagnosed “tendonitis in the wrists” and prescribed anti-inflammatory medication and physiotherapy, but did not certify Ms Manoharan unfit for work. In an “Incident Report Early Notification of Injury” form completed by Ms Manoharan on 9 December 2004, she described her injury as follows:
“I have been having pains on [sic] my wrists for the past few months. Recently the pains have increased – visited doctor on 2/12/04, 13/11/04 & 7/12/04. Took S/L on 2/11/04 to see doctor since pain unbearable.”
Under “Location where injury occurred” and “How did the incident /injury occur” she has written “N/A”.
On 14 December 2004, two occupational therapists, Mr Seeto and Ms Vrljicak, from an organisation called Konekt, conducted a worksite assessment of Ms Manoharan’s workstation. In their report of 17 December 2004, they recorded:
(a)Ms Manoharan gave a 12 month history of bilateral wrist pain, more pronounced on the right with a definite onset of symptoms when opening jars;
(b)the physical demands of Ms Manoharan’s duties included:
· Prolonged/constant sitting
· Constant bilateral and unilateral movement of the upper limbs
· Constant fine motor manipulation (mouse and keyboard)
· Frequent shoulder flexion
· Frequent neck movement and frequent prolonged static neck postures
(c)due to the nature of her work duties, there was limited opportunity for Ms Manoharan to vary her work tasks and leave her workstation;
(d)Ms Manoharan should take regular stretch breaks throughout the day (for 5 minutes every 40 – 60 minutes) and rotate between sitting and standing when appropriate;
(e)Ms Manoharan had been sitting at the incorrect height in relation to her desk, promoting excessive wrist extension. In addition, wrist compression was observed because Ms Manoharan would rest her wrists on the metal rests of the corner converter during keying. During keying, she was observed to place weight through her elbows to fix her elbows on the armrests. This posture promoted prolonged lateral flexion of the spine to the right, prolonged shoulder elevation and shoulder flexion, and excessive wrist deviation and extension;
(f)a filing cabinet to the left of Ms Manoharan restricted leg movement under the work surface and promoted excessive torso rotation;
(g)Ms Manoharan’s keyboard was situated outside her optimal reach zone, resulting in prolonged static shoulder flexion, and
(h)Ms Manoharan was right hand dominant and most of her work tasks were completed with her right hand. Ms Manoharan displayed excessive wrist extension while keying and using the mouse.
American Express referred Ms Manoharan to Konekt again on 12 February 2005, for the preparation of a Return to Work Planning Report. Konekt prepared that report on 21 February 2005, in which it was recorded that Ms Manoharan no longer complained of pain from her elbow to her shoulder, but still had constant pain from her elbow to her wrist. Her swelling had decreased, but her grip was still weak.
Dr Iyengar certified Ms Manoharan to be unfit for one day (20 December 2004) and from 24 to 28 January 2005 (see Ms McPherson’s “Closure Report” dated 22 April 2005, though there is no medical certificate covering this period) and then declared her fit for unidentified suitable duties for four hours per day five days per week from 1 February until 10 February 2005 and for six hours per day from 10 February until 24 February 2005 when she declared her fit for her pre-injury duties. Ms Manoharan resigned, effective from either 11 or 14 March 2005. Dr Iyengar issued two further certificates certifying Ms Manoharan fit for work, dated 8 March 2005 and 19 April 2005. The next certificate, dated 23 May 2005, did not give an opinion on fitness for work.
Ms McPherson, an occupational therapist with Konekt, prepared a “Closure Report” on 22 April 2005. She set out the history of the matter, the onset of symptoms, the worksite assessment by Konekt on 16 February 2005, and Dr Iyengar’s initial diagnosis of bilateral tendonitis. Ms Manoharan was unable to identify an incident that may have precipitated her symptoms, but she said that typing exacerbated them. Ms Manoharan advised Konekt on 24 February 2005 (the date when Dr Iyengar declared her fit for her pre-injury duties) that she was concerned over her long-term ability to continue in her job, despite a positive short-term prognosis from her doctor. Under “Reasons for Closure”, Ms McPherson recorded that “Ms Manoharan has successfully been monitored performing pre injury duties since 24 February 2005, and has been managing different duties with a different employer since 11 March 2005”.
Ms McPherson recorded that Ms Manoharan resigned “due to her concern over her ongoing pain” (page two) and had commenced a sales position, which required minimal typing, but frequent driving. Her pain had decreased a bit, but the swelling was still present. Exactly when Ms McPherson took this history is not known, but I infer that it was between 11 March and 22 April 2005. Konekt liaised with Mr Houswirth (Ms Manoharan’s physiotherapist) who reported that she was continuing to experience pain and would require physiotherapy for several months.
Between April and June 2005, Ms Manoharan worked for a company called Card Call selling pre-paid phone cards (see report from Ms Christofi, rehabilitation manager with Procare, dated 30 May 2006, page six). From July 2005 until June 2007, she worked in her husband’s business (Transcript Oz Asia Pty Ltd) as an accounts clerk taking telephone calls and doing bookkeeping for one to two hours per day for up to seven days per week.
Andrew Leaver, physiotherapist, examined Ms Manoharan at the request of QBE on 10 August 2005 and reported on 16 August 2005. He conducted what he called a “stage 3 assessment”. That involved a review of documents, an assessment of Ms Manoharan and discussion with the treating physiotherapist regarding future management. He recorded that Ms Manoharan developed bilateral forearm pain of gradual onset in early-mid 2003. By November 2004, her condition had worsened and she had constant, dull aching over the volar aspect of the forearms. Her employer arranged a workstation assessment and implemented the recommended changes to her workstation. Ms Manoharan resigned in March 2005, because she felt she was a burden to her employer. Physiotherapy from December 2004 until June 2005 resulted in a marked improvement in her condition with a reduction of local forearm swelling and lasting decrease in pain. Her symptoms on presentation to Mr Leaver included intermittent pain over the volar aspect of both forearms described as a dull throbbing ache, aggravated by strong gripping such as opening a jar and with sustained activities like meal preparation. She reported no neck or shoulder pain, no paraesthesia and vasomotor symptoms. She denied any past history of upper limb injury.
On examination, Mr Leaver found provocative tests for de Quervains tenosynovitis, scapholunate instability, carpal tunnel syndrome, and first CMC osteoarthritis to be unremarkable on both sides. He diagnosed chronic bilateral flexor tendinitis “related to occupational overuse”, which evolved into chronic regional pain syndrome. The condition improved, but there was “reduced tolerance for loaded and repetitive upper limb activities”. Future management should be focused on “sensibly paced upgrading of exercises and upper limb activities. He recommended approval for occasional physiotherapy on an ‘as needed basis’ to assist with relapse management.
In October 2005, Ms Manoharan saw Dr Kirkham, orthopaedic surgeon, on referral from her general practitioner. In his report to Dr Iyengar of 31 October 2005, Dr Kirkham recorded the following history and findings:
(a)Ms Manoharan’s job at American Express required her to work as a credit analyst from 8.30 until 4.30 without a break. She was under a lot of pressure to get things done and, though she was not a trained typist, “she spent a lot of time” typing with both hands;
(b)outside work she had no regular sport, but did do some sewing, which had become increasingly difficult since her problem started;
(c)Ms Manoharan’s maximum symptoms were in the region where the flexor tendons pass into the carpal tunnel with pain radiating up her forearm and sometimes as far as her shoulders;
(d)tinel’s sign (a test for carpal tunnel syndrome) was negative, and
(e)her symptoms looked like flexor tenosynovitis in both wrists, though it was possible she had an undiagnosed “hook of hamate fracture or other bony anomaly in the carpal tunnel”.
An MRI scan of Ms Manoharan’s right wrist by Dr Liang on 23 November 2005 revealed the median nerve to be slightly swollen. Dr Liang concluded:
“The appearance is compatible with carpal tunnel syndrome showing evidence of a moderate degree of median nerve compression within the carpal tunnel. There is, however no evidence of any significant flexor tenosynovitis/tendinopathy/ganglion cyst. The cyst-like lesions in the capitate are likely to be intra-osseous ganglions.”
Dr Kirkham thought the MRI scan was “certainly negative” (report 16 December 2005) and that Ms Manoharan did not “present [with] any carpal tunnel syndrome”. Though Dr Liang found dilation of the median nerve, Dr Kirkham did not think it was of any clinical significance. He added:
“During the last two months Faye’s symptoms have resolved and they do seem to be activity related.
…
If there were any carpal tunnel type symptoms in her fingers then I’d recommend a Nerve Conduction Study and if after that there were some positive findings, then please don’t hesitate to get in touch with me.”
Though Dr Kirkham recorded that Ms Manoharan’s symptoms had resolved in the two months prior to 16 December 2005, he also suggested that a “non-operative Hand Therapy management programme” be pursued together with anti-inflammatory gels. This strongly suggests that Ms Manoharan’s symptoms had not fully resolved.
In 2006, Dr Iyengar referred Ms Manoharan to Dr Wheen, surgeon, from The Centre for Hand Surgery. In his report of 10 May 2006, Dr Wheen recorded that Ms Manoharan presented with symptoms in her wrists, elbows and shoulders, more prominent on the right side. He also noted her work history as a credit analyst with American Express and the contents of the MRI scan, which revealed changes consistent with carpal tunnel syndrome. His opinion is confusing, perhaps because of a typing mistake. He said:
“Opinion: Although the symptoms are not quite typical, I do not [sic] think the main problem is of right, and to a lesser degree left sided carpal tunnel syndrome.
Recommendation: She should have nerve conduction studies of the right and left median nerves which I will arrange ON APPROVAL OF QBE.
Thereafter either steroid injection or surgical release of the carpal tunnels could be indicated. I will let you know of her progress.”
It seems to me that, given the tenor of his report, the doctor was saying that he thought Ms Manoharan’s problem was carpal tunnel syndrome. So much seems to have been conceded by counsel for American Express at the arbitration (T18.48).
QBE arranged for Ms Manoharan to be examined by Dr Meares, plastic, reconstructive and hand surgeon, on 30 May 2006. In his report of 31 May 2006, he recorded that Ms Manoharan noticed aching in both arms in 2002. She “thought it was the desk at work and took some panadol”. On examination, he found no sign of flexor tenosynovitis, no swelling or deformity, normal sensation in both hands and a normal range of movement, but a mildly positive tinel’s sign in both wrists. He thought Ms Manoharan may have carpal tunnel syndrome and that her condition was consistent with the history given. Whilst he considered her fit for employment, he added that “she may not be able to do her pre-injury work”, but could do light office work.
Dr Meares felt that Ms Manoharan’s employment was not a substantial contributing factor to the carpal tunnel syndrome, but that she had developed the condition “on a constitutional basis” and would have developed it at that stage of her life whether or not she worked for American Express.
Dr Iyengar referred Ms Manoharan to Dr Dowla, consultant in neurology, on 23 June 2006. He took a history of Ms Manoharan having had pain in her right upper limb from her shoulder to her wrist for two years and that by December 2004 her working hours were reduced to four per day. He recorded that:
“She was unable to continue in her duty as a credit analyst and resigned in March 2005. By that time she had significant pain and paraesthesia affecting both upper limbs particularly the right. She has minimal early morning, nocturnal paraesthesia and numbness.”
Nerve conduction studies conducted by Dr Dowla revealed bilateral median nerve slowing at the wrist “typical of carpal tunnel syndrome”, moderately severe on the right and mild on the left. Like Dr Wheen, Dr Dowla felt that Ms Manoharan’s symptoms were atypical, but there was no doubt there was electrophysiological and radiological confirmation of carpal tunnel syndrome. He recommended surgery, “with caution”.
After considering the nerve conduction studies, Dr Meares prepared a supplementary report on 12 July 2006 in which he confirmed his opinion that Ms Manoharan’s carpal tunnel syndrome was constitutional and that it is a condition that is common in middle-aged women and is “usually unrelated to employment”.
In his report of 5 December 2006, Dr Wheen recorded Ms Manoharan experienced some improvement in her right carpal tunnel syndrome after a steroid injection two months before, but he felt that surgical release was warranted. He performed a right carpal tunnel release on 1 February 2007. The operation revealed the anatomy of the median nerve to be normal, no inflammatory flexor tenosynovitis, and prolonged proximal thickening of the volar forearm fascia. On 8 May 2007, Dr Wheen recorded that there had been good recovery following the surgery with a little mild residue symptomatic arthrosis of the pisotriquetral joint. There was continuing pre-operative right shoulder stiffness and pain. Symptoms in the left hand were “mild”.
Between 25 March 2007 and 29 July 2007, Ms Manoharan worked for Clarendon Residential Group as a display home assistant, meeting and greeting clients at display homes.
Ms Manoharan’s solicitors qualified Dr Nash, consultant vascular and general surgeon, who examined her on 15 June 2007. In his report of 15 August 2007, Dr Nash recorded that Ms Manoharan developed swelling of both wrists in November 2004 while working for American Express for eight hours per day at a keyboard. She said she had pain in her wrists for 18 months (presumably this refers to the 18 months up to November 2004, but it is far from clear), but did not think it was due to her work. He recorded that Ms Manoharan was placed on light duties for four hours per day, but had to type, which was stressing her, and she resigned. She underwent a carpal tunnel release on her right wrist on 1 February 2007 (performed by Dr Wheen), which improved her pain, but not 100%. Her presenting symptoms to Dr Nash were of pain in her wrists, particularly the right hand if she used it repetitively.
Dr Nash’s opinion was that Ms Manoharan presented with “a classic case of bilateral carpal tunnel syndrome, more pronounced on the right side” and that her history was consistent with the clinical findings. He had no doubt that she was genuine and made no attempt to exaggerate or embellish her symptoms. Based on a history of “long periods of typing as a credit analyst at a computer, at a rapid rate, over an extended time” and, noting that prior to the commencement of this work Ms Manoharan was asymptomatic, Dr Nash concluded that she developed a “work related abnormality of her wrists, particularly the right, and the compressive neuropathy is the direct result of her employment” (Dr Nash, report 15 August 2007, page three). After noting a recent article by Dr Stapleton that suggested carpal tunnel syndrome has nothing to do with occupation, Dr Nash concluded that he tended to agree with the contrary view expressed by Dr Allison that there is a relationship between work and the development of carpal tunnel syndrome in some patients. He found no disability in the shoulders and noted the minor degenerative changes in her neck were not related to her employment with American Express. If there had been a temporary aggravation of those degenerative changes, it had ceased once work stopped. He thought Ms Manoharan was unfit for the repetitive rapid keyboard work she did with American Express on a full time basis.
On 20 November 2007, Dr Wheen recorded that the right shoulder had improved, but there was some residual right wrist ache. On the left side, symptomatic carpal tunnel syndrome continued and he advised that she consider surgery.
Dr Meares reviewed Ms Manoharan on 23 January 2008 (report 28 January 2008). He noted that Ms Manoharan had undergone surgery to her right wrist in February 2007, which improved a lot as a result. She was considering surgery to her left wrist (recommended by Dr Wheen) because of continuing symptoms. Dr Meares confirmed his diagnosis of bilateral carpal tunnel syndrome and his opinion that Ms Manoharan developed the condition on a constitutional basis. He also noted the articles by Dr Stapleton, and by Falkiner and Myers, which supported that view.
On 1 April 2008, Dr Wheen recorded that Ms Manoharan achieved an excellent result from the surgery to her right wrist. She had no numbness in the hand, good power of the thenar eminence and a marked reduction in the dropping of things and of her wrist pain. She still had numbness of the left middle and ring fingers, particularly when driving and the Phalen’s test (for carpal tunnel syndrome) was strongly positive. He again recommended surgery to the left wrist.
Dr Nash reviewed Ms Manoharan on 18 April 2008 and reported on 5 May 2008. On the question of causation, Dr Nash’s opinion was:
“The question of this being work related remains difficult to ascertain with certainty.
The current situation regarding carpal tunnel syndrome (CTS) is summarized:-
1 The weight of clinical opinion world wide strongly suggests the connection with certain types of repetitive work/activity and the development of CTS.
2 There is at present no statistically based evidence to indicate the cause of CTS one way or the other.
3 Menopause has nothing to do with CTS, the connection being the age of the women who frequently develop CTS are in the range of 40 to 50 years. Many women who work at this age are often deconditioned.
4 Certain types of work eg the use of high vibrating tools seems to definitely cause CTS and the symptoms may abate after a period of disuse.
5 Some women seem to be constitutionally liable to develop CTS there being a relatively small carpal tunnel to accommodate the flexor tendons and the median nerve that passes through it.
6 Recent studies by Bonfiglioli et al of the Occupational Health Unit, University of Bologna, Italy 2007 to investigate the relationship between repetitive work and the prevalence of carpal tunnel syndrome in part-time and full-time female supermarket cashiers exposed to different week [sic, work] operation of biomechanical load found that the prevalence of CTS was higher among
7 [sic] full time (31.0%) than in part-time cashiers (19.3%) or controls (16.3%). They concluded in a study of 269 cashiers and 127 office workers that ‘Intensive manual work associated with inadequate recovery time might have generated an impairment of the median nerve at the wrist level proportionally increasing with the duration of hand use’.
8 The risk of developed [sic, developing] CTS is reported by the Institute of Neurological Disorders in USA as being common in those performing assembly line work, manufacturing, sewing, finishing, cleaning, meat poultry and fish packing, where it was found that it was 3 times [more] common than amongst data entry personnel.
On the current evidence available I believe it is impossible to say that work is not at least an aggravating factor in the development of CTS and it is my opinion there is a definite connection between occupation and the development of CTS in some individuals. This may be related to the person’s condition or lack of fitness, constitutional and anatomical differences in the carpal tunnel itself and the duration and type of repetitive activity. It is my opinion that each case must be considered individually on its merits.
Mrs Manoharan has a disability which I believe is the result of her work related activity performed between April 2003 and 14 March 2005. She has loss of grip strength in both hands and positive Phalen’s test on the left hand.”
In respect of Dr Meares’ opinion, Dr Nash added:
“Whilst she may have some underlying constitutional basis she was asymptomatic prior to her work and I believe that her employment with American Express must be considered to have been a significant contributing factor to her current disability. I do not believe that she would have developed bilateral carpal tunnel syndrome at that stage in her life if she had not been engaged in the repetitive type activity she performed at American Express, from 8.30am to 4.30pm, 5 days a week without regular breaks.”
ARBITRATOR’S DECISION
To appreciate the Arbitrator’s conclusions it is necessary to briefly summarise American Express’ submissions at the arbitration, which the Arbitrator accepted. American Express submitted:
(a)Ms Manoharan had not made out her case as to injury and whether her work caused her problems. There was a paucity of detail as to the nature of the work Ms Manoharan performed (T12.44);
(b)Dr Iyengar declared Ms Manoharan fit for her pre-injury duties on 24 February 2005 and there was no change in that certification until she was certified fit for suitable duties on 5 July 2005. No explanation was offered for that change in opinion even though Ms Manoharan was not at work for American Express (T20.12). The Konekt report from Ms McPherson referred to Ms Manoharan ceasing work in March 2005 to commence a new position, yet Ms Manoharan’s first statement was silent as to any work until 2007 and her second statement referred to her having performed some work from July 2005 until June 2007 in her husband’s business;
(c)Dr Kirkham could not find any pathology and negatived carpal tunnel syndrome (T17.48) and noted that the symptoms had resolved over the two months preceding December 2005. Therefore, if there had been a flare up of symptoms, that had resolved (T17.50);
(d)Dr Dowla did not seem to identify anything (T17.53), though this submission was later changed to “carpal tunnel may be playing some role in the pain” (T18.16). Mr Leaver referred to intermittent symptoms at his consultation in August 2005, which fitted with the certification from Dr Iyengar;
(e)neither Dr Wheen nor Dr Kirkham dealt with causation;
(f)Ms Manoharan has not discharged the onus of proving injury;
(g)the qualified doctors do no more than cancel each other out;
(h)Dr Kirkham’s evidence suggests that Ms Manoharan’s symptoms had resolved by August/September 2005, which accords with Mr Leaver’s history that they had become intermittent (T20.16);
(i)Dr Wheen has an incorrect history of continuity of symptoms (T20.23). There is nothing to explain why the symptoms had become so severe at that stage – 15 months after ceasing work for American Express – as to require referral again to a specialist, and
(j)if there was a finding on injury, which was not conceded, any aggravation ceased by 24 February 2005 when Ms Manoharan was certified fit for her pre-injury duties, or, at the latest, by August/September 2005, to accord with Dr Kirkham’s history that the symptoms had resolved.
In his Statement of Reasons for Decision (‘Reasons’) dated 12 June 2008, the Arbitrator summarised the evidence, and concluded:
(a)the authorities of Morgan v Coles Myer Limited [2005] NSWWCCPD 64 (where a claim for compensation for carpal tunnel syndrome failed) and Elextrolux Home Products Pty Ltd v Osborne [2007] NSWWCCPD 95 (where such a claim succeeded) were illustrations of cases turning on their own facts (Reasons, paragraph 45);
(b)in the light of the certification by Dr Iyengar, that Ms Manoharan was fit for her pre-injury duties, and in the absence of any explanation by the doctor as to why she so certified Ms Manoharan, if she was unfit (as she apparently alleged when seen by Ms Christofi for Procare on 23 August 2006), he was left in some doubt as to whether Ms Manoharan had recovered from her symptoms or not when she resigned in March 2005 (Reasons, paragraph 45);
(c)this unresolved conflict became significant when Ms Manoharan’s expert witness was unaware that her general practitioner had certified her fit for her pre-injury duties for some two to three weeks prior to her resignation (Reasons, paragraph 46);
(d)if Ms Manoharan’s condition had resolved then, or even later, (as noted by Dr Kirkham on 16 December 2005), it may be that liability falls on her subsequent employer, carpal tunnel injuries being classified as a disease process (Perry v Tanine Pty Ltd t/as Ermington Hotel & others (1996) 16 NSWCCR 253);
(e)the state of the evidence was unclear and he was left in some doubt as to whether there had been a resolution of symptoms and whether that resolution, if it occurred, would have altered or modified Dr Nash’s opinion (Reasons, paragraph 47);
(f)Ms Manoharan had not met her onus of adducing evidence to counter the effect of these difficulties (Watts v Rake [1960] HCA 58; (1960) 108 CLR 158). Accordingly, she did not satisfy her onus of proof that her employment was, on the balance of probabilities, either causative of, or a substantial contributing factor to, her injury (Reasons, paragraph 48), and
(g)he was not satisfied that employment caused the carpal tunnel syndrome and, if there was some causative element in her latest onset of the problems with her wrist, in view of the temporal difficulties, he did not think that employment was a substantial contributing factor to the condition (Reasons, paragraph 49).
SUBMISSIONS
Ms Manoharan submits that:
(a)The Arbitrator misdirected himself when considering the medical evidence in that he construed the medical certificate that certified her fit for pre-injury duties as meaning there were no ongoing symptoms related to the injury. Dr Kirkham noted a lessening of symptoms in December 2005, when her work activities had decreased significantly. It was not open to the Arbitrator to find, based on a bare medical certificate certifying the worker fit for her pre-injury duties, that there were no ongoing symptoms, especially when the evidence is that she never attempted those duties;
(b)the Arbitrator confused the nature of the injury with American Express when he applied an evidentiary test of whether the symptoms had ceased (on which he wrongly directed himself in any event) as being determinative on the question of whether the injury was work related. The evidence is that there is a neurological deficit, as found by Dr Wheen, which resulted from her work, not an aggravation by her work of an underlying condition;
(c)even if the condition was constitutional, as Dr Meares contends, there would still be some hormonal (or other) trigger to the condition. The evidence is clear that the trigger was activity related (see Dr Kirkham’s report of December 2005). The constitutional condition here cannot be compared to say a degenerate back as the Arbitrator has in effect done;
(d)the Arbitrator misdirected himself (at paragraph 37 of his Reasons) in finding a dispute between Dr Iyengar’s certification of fit for duties and Ms Manoharan’s statement to Procare on 23 August 2006. The conflict only exists because the Arbitrator misdirected himself on the effect of Dr Iyengar’s certification;
(e)the Arbitrator failed to consider Dr Nash’s report as giving support for the diagnosis of carpal tunnel syndrome. To state that Dr Nash was unaware of Dr Iyengar’s certification and to use this to dismiss Dr Nash’s opinion is an error because the Arbitrator misdirected himself as to the meaning and significance of the certification, and
(f)the Arbitrator misdirected himself (at paragraph 46 of his Reasons) on the test for a disease process. The work done after leaving American Express was of a different and much less strenuous nature and would not have contributed, even for a short while, to the disease process.
American Express submits:
(a)the onus was on Ms Manoharan to establish that she had sustained an injury arising out of or in the course of her employment and that her employment was a substantial contributing factor to that injury. Ms Manoharan failed to satisfy these requirements;
(b)the medical evidence did not unequivocally establish a diagnosis for the alleged injury:
· Dr Iyengar diagnosed tendonitis, which “evolved into a diagnosis of carpal tunnel compression”;
· Dr Kirkham was puzzled by Ms Manoharan’s presentation and did not consider her to have carpal tunnel syndrome. He also recorded that her symptoms had resolved over the two months prior to December 2005;
· Dr Wheen described the symptoms as “not quite typical” in May 2006, but in later reports described the condition as carpal tunnel syndrome;
· Dr Kirkham and Dr Wheen did not attribute the condition to work in a relevant causal sense;
· the qualified experts (Dr Nash and Dr Meares) agree as to diagnosis but disagree as to causation;
· Dr Nash attributed the condition to long periods of typing as a credit analyst at a rapid rate over an extended period of time. This history is not supported by the evidence;
· Dr Iyengar’s certificates and Dr Kirkham’s evidence provide a solid foundation for the conclusion that, at the time Ms Manoharan stopped work for American Express, she was not suffering from any significant medical condition or symptomatology; the symptoms having largely resolved, whether or not she was fit for pre-injury duties.
(c)the evidence does not unequivocally support a diagnosis of carpal tunnel syndrome and, further, the weight of the evidence does not support a finding that Ms Manoharan suffered an injury within the meaning of section 4 of the 1987 Act to which employment was a substantial contributing factor;
(d)the paucity of evidence from the treating doctors on the issue of causation is a significant matter in a case such as this where the qualified medical experts are polarised on the issue. The scant details in Ms Manoharan’s evidence as to the duties said to have given rise to the alleged injury compounds the problem. Against this background, it was open to the Arbitrator to conclude that Ms Manoharan had not discharged the onus of proof. His conclusion does not disclose any error, nor is it the product of error;
(e)it was open to the Arbitrator to evaluate and comment on Dr Iyengar’s evidence when considering the evidence from the qualified experts, particularly given Dr Kirkham had expressed similar views several months later;
(f)the Arbitrator’s conclusion was not only based on the cessation or diminution of Ms Manoharan’s symptoms, as detailed in the evidence of Dr Iyengar and Dr Kirkham, but also on the paucity of evidence as to injury history, development of symptoms and treating doctor medical opinion on causation;
(g)the Arbitrator did not reach any definitive conclusion or finding as to Ms Manoharan’s condition or its cause. He was simply not satisfied she had made out her case. He did not misdirect himself in relation to the interpretation of Dr Iyengar’s certification;
(h)the Arbitrator did not dismiss Dr Nash’s opinion on the basis of Dr Iyengar’s certificates, but merely observed that Dr Nash had not been made aware of Dr Iyengar’s views on incapacity. Ultimately, the Arbitrator was not satisfied Dr Nash’s opinion prevailed in establishing Ms Manoharan’s case, given the evidence of the treating specialists and Dr Meares on the issue of causation, and
(i)the Arbitrator did not misdirect himself on the test for a disease process. His comment on disease was not germane to his decision. The case was not argued on the basis of disease.
DISCUSSION AND FINDINGS
The Arbitrator’s Approach
Though the evidence was far from ideal (mainly because of the inadequate statements from Ms Manoharan), I do not believe it was such that the Arbitrator should have felt “in doubt as to whether Ms Manoharan had recovered from her symptoms or not when she resigned in March 2005” (Reasons, paragraph 45). The weight of the evidence was that she had not recovered by the time she stopped work for American Express in March 2005. That evidence is:
(a)that she still had constant pain from her elbow to her wrist as at 12 February 2005 (see the Konekt report of 21 February 2005);
(b)Dr Iyengar’s recommendation of continuing physiotherapy in his certificate of 24 February 2005 strongly implies that the symptoms had not resolved;
(c)Ms Manoharan resigned due to her concern over her ongoing pain (Ms McPherson’s report of 22 April 2005);
(d)Ms Manoharan was concerned over her long-term ability to continue in her job, despite a positive short-term prognosis from her doctor (Ms McPherson’s report of 22 April 2005);
(e)Ms Manoharan resigned because she felt she was a burden to her employer (Mr Leaver’s report of 16 August 2005);
(f)physiotherapy continued from December 2004 until June 2005 and resulted in a marked improvement in her condition with a reduction of local forearm swelling and lasting decrease in pain, though Ms Manoharan complained of intermittent pain over the volar aspect of both forearms when Mr Leaver examined her on 10 August 2005 (Mr Leaver’s report of 16 August 2005), and
(g)Ms Manoharan resigned because she felt she was a burden to her work colleagues and employer (Ms Christofi’s report of 30 May 2006).
The weight of the above evidence, coming from several independent sources, is not diminished in value because Ms Manoharan’s statements did not adequately address the reason for her resignation.
The Arbitrator considered that the “unresolved conflict” – between Dr Iyengar certifying Ms Manoharan fit if in fact she was unfit – became significant when Ms Manoharan’s expert (Dr Nash) was unaware that she had been certified fit for her pre-injury employment (Reasons, paragraph 46). Being in doubt as to whether symptoms had resolved and whether, if they had resolved, that would have altered Dr Nash’s opinion, the Arbitrator determined that Ms Manoharan had not discharged the onus of proof.
Clearly, even if the “unresolved conflict” was not determinative, as Ms Manoharan submits, it was a “significant” matter in the Arbitrator’s assessment of the case. Having regard to the whole of the evidence, there was no proper basis for the Arbitrator’s “doubt” about whether Ms Manoharan’s symptoms had resolved by the time she ceased work with American Express. The symptoms had not resolved and QBE’s own physiotherapist confirmed as much in August 2005. That being the case, there was no reason to speculate as to whether Dr Nash may have altered his opinion.
As a result, I agree with Ms Manoharan’s submission that the Arbitrator misdirected himself when considering the medical evidence and in finding that she had not discharged the onus of proof.
The following questions must therefore be determined: did Ms Manoharan sustain an injury and, if so, what was the injury, and was her employment a substantial contributing factor to that injury?
Did Ms Manoharan Sustain an Injury?
It cannot be seriously challenged that Ms Manoharan developed symptoms in her upper limbs in either late 2003 or early 2004. At that time her duties included constant bilateral and unilateral movements of her upper limbs and constant fine motor manipulation of a mouse and keyboard (see Konekt’s report, 17 December 2004). An examination of her workstation revealed that she had been sitting at the incorrect height in relation to her desk and, as a result, experienced excessive wrist extension (see paragraph [18] above). In addition, her keying technique converter caused wrist compression.
Konekt recommended several changes to Ms Manoharan’s workstation, which American Express implemented. In the report of 21 February 2005, Mr Seeto and Ms Vrljick noted the diagnosis of bilateral tendonitis and they prepared a return to work plan that was consistent with that diagnosis.
For reasons that are not explained in the evidence, Dr Iyengar declared Ms Manoharan fit for her pre-injury duties from 24 February 2005. Ms Manoharan’s submission that there is no evidence that she performed those duties is incorrect. Ms McPherson reported on 22 April 2005, that Ms Manoharan had been successfully monitored performing her pre-injury duties since 24 February 2005. Whilst it seems unusual that the return to work plan only operated from 16 to 24 February 2005, that is the evidence.
Nevertheless, consistent with the evidence set out at [50] above, I find that Ms Manoharan’s symptoms had not resolved and that she had not recovered from her upper limb condition at the time she ceased work for American Express. The diagnosis from Dr Iyengar was of bilateral tendinitis. Had the diagnosis rested solely on that opinion, I would not have accepted it because, in the absence of a report from Dr Iyengar, the diagnosis was a bare ipse dixit unsupported by any reasoned analysis (Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16).
However, Mr Leaver’s report of 16 August 2005 set out a detailed history of Ms Manoharan’s history and symptoms and concluded that she suffered from chronic bilateral flexor tendinitis that had evolved into chronic regional pain syndrome. He added that the condition was “related to occupational overuse” (page four). As there is no evidence that Ms Manoharan’s work with Card Call or her part-time work with her husband’s business were relevant factors in either the development or continuation of her symptoms, the only relevant occupation was Ms Manoharan’s work with American Express. Though not adequately dealt with in Ms Manoharan’s statements, Konekt noted that Ms Manoharan’s duties with American Express involved constant fine motor manipulation and excessive wrist extension.
Mr Leaver provided no basis for his opinion that the condition had evolved into a chronic regional pain syndrome and his examination did not support that conclusion. Nor was this part of his opinion supported or even referred to by the other medical experts. I therefore do not accept his diagnosis of regional pain syndrome.
The evidence of Dr Kirkham, that Ms Manoharan’s symptoms looked like flexor tenosynovitis, was not inconsistent with Mr Leaver’s opinion that Ms Manoharan was suffering from bilateral flexor tendinitis. Dr Kirkham also found, like Mr Leaver, that the tinel’s sign for carpal tunnel syndrome was negative.
The history outlined above suggests, and I find, on the basis of Mr Leaver’s evidence, partly supported by, or at least not inconsistent with Dr Kirkham’s evidence, that Ms Manoharan sustained an injury in the nature of bilateral tendinitis as a result of the nature and conditions of her employment with American Express between April 2003 and 14 March 2005.
Was Employment a Substantial Contributing Factor to the Injury?
I also find that Ms Manoharan’s employment with American Express was a substantial contributing factor to her injury. I make this finding on the basis of the nature of the work Ms Manoharan performed and the tasks of that work, the duration of her employment (as discussed in the evidence from Konekt) and the state of her health prior to her injury. I do not believe that she would have developed bilateral tendinitis at about the same time or at the same stage of her life, if she had not been performing the duties she performed with American Express.
Did Ms Manoharan Develop Carpal Tunnel Syndrome?
My finding on injury does not rule out the possibility that Ms Manoharan developed carpal tunnel syndrome at a later time. I think that she did and Drs Mears and Nash support this conclusion. However, she faces several obstacles that prevent a finding that the carpal tunnel syndrome arose out of or in the course of her employment with American Express.
For the following reasons, I do not accept that Ms Manoharan’s carpal tunnel syndrome resulted from her employment with American Express:
(a)the initial diagnosis from Dr Iyengar and Mr Leaver in 2005, consistent with her complaints at that time, was of bilateral tendinitis;
(b)testing for carpal tunnel syndrome by Mr Leaver and Dr Kirkham in 2005 was negative;
(c)by August 2005, Mr Leaver noted that her initial swelling and constant pain had resolved, though she still had intermittent symptoms;
(d)after an unexplained gap of several months after Dr Kirkham’s report in December 2005, in which he recorded that the symptoms had resolved, Dr Iyengar referred Ms Manoharan to Dr Wheen in May 2006, about 14 months after she had stopped work for American Express. Whilst I think that Dr Kirkham’s statement that the symptoms had resolved was inaccurate, that is not critical for the present purposes. Dr Wheen was the first doctor to diagnose carpal tunnel syndrome, but not until May 2006 and he noted that the symptoms were “not quite typical”, a view shared by Dr Dowla;
(e)neither Dr Wheen nor Dr Dowla gave any evidence as to the cause of the carpal tunnel syndrome;
(f)the only support for a connection between the carpal tunnel syndrome and Ms Manoharan’s employment with American Express is from Dr Nash. I do not accept his opinion on causation. First, Dr Nash considered that Ms Manoharan presented with “a classic case” of carpal tunnel syndrome. Whilst it is possible that that was the presentation by the time he saw her in June 2007, that was certainly not the case in 2005, or in 2006 when Drs Wheen and Dowla considered her condition to be atypical. Second, Dr Nash gave no explanation of the apparent partial resolution of Ms Manoharan’s symptoms in late 2005 and the reappearance of those symptoms in 2006. Last, and most important of all, in support of his opinion that Ms Manoharan’s condition is related to her typing duties with American Express, Dr Nash referred to the Institute of Neurological Disorders in the USA as reporting that carpal tunnel syndrome was common in those performing assembly line work, manufacturing, sewing, finishing, cleaning, meat poultry and fish packing, “where it was found that it was 3 times [more] common than amongst data entry personnel”. This seems to suggest that data entry (which is not an accurate description of Ms Manoharan’s occupation with American Express in any event) is not an occupation where the incidence of carpal tunnel syndrome is common. Similarly, the studies of 269 cashiers and 127 office workers by Bonfiglioi et al suggested, “Intensive manual work associated with inadequate recovery time might have generated an impairment in the median nerve at the wrist level proportionally increasing with the duration of hand use” (emphasis added). Ms Manoharan’s duties with American Express did not fit the description of “intensive manual work”.
CONCLUSION
Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), it follows that the Arbitrator’s decision cannot stand. I find that Ms Manoharan sustained an injury in the nature of bilateral flexor tendinitis arising out of or in the course of her employment with American Express between April 2003 and 14 March 2005 and that her employment with American Express was a substantial contributing factor to that injury.
This leaves the question of what compensation entitlements flow from Ms Manoharan’s injury. Whether the effect of that condition is continuing or has resolved is not adequately addressed in the evidence and it is not possible for me to determine this issue. Both parties will need to consider if they wish to tender additional evidence on this issue or other issues (such as incapacity) at the re-determination. At the very least, a detailed statement will need to be taken from Ms Manoharan.
DECISION
The Arbitrator’s determination dated 12 June 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. Costs of the first arbitration and of the second arbitration are to follow the outcome of the second arbitration.
Bill Roche
Deputy President
3 October 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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