Mansfield and Comcare (Compensation) - [2020] AATA 3917

Mansfield and Comcare (Compensation) [2020] AATA 3917 (8 September 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6383
Re:Angela Mansfield
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:  A G Melick AO SC, Deputy President
Date of decision:               8 September 2020
Date of written reasons:         6 October 2020
Place:Hobart

The Tribunal sets aside the decision and substitutes the following:
a. Comcare is liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of right lateral epicondylitis deemed to have been sustained on 30 April 2018;
b. Comcare is to pay the Applicant’s reasonable legal cost and disbursements in accordance with section 67 of the SRC Act; and
c. No decision is made with respect to right brachial plexus neuropathy as the Tribunal finds it unnecessary to deal with that condition in view of the finding at (a) of this decision.

..............................[sgd]..........................................
A G Melick AO SC, Deputy President
COMPENSATION – did the Applicant suffer from an ailment or aggravation of an ailment within the meaning of the Act – was the ailment of aggravation contributed to, by a significant degree, by the Applicant’s employment – whether the ailment was an injury of which the Respondent is liable - decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v PVYW [2013] HCA 41
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Humphrey Earl Ltd v Speechley (1951) 84 CLR 133
Re Jones and Comcare [2013] AATA 334
O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000
Prain and Comcare [2014] AATA 593
Telstra Corporation Limited v Bowden [2012] FCA 576
Wiegand v Comcare Australia [2002] FCA 1464
WRITTEN REASONS FOR ORAL DECISION

A G Melick AO SC, Deputy President
6 October 2020

This is an application for a claim to accept liability and pay compensation for an injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’). The Applicant made a claim dated 7 May 2018 for right lateral epicondylitis affecting the right elbow and forearm.
On 3 July 2018, the Respondent provided a determination denying liability for a condition described as ‘right elbow lateral epicondylitis’ on the basis that whilst it was accepted the Applicant suffered from a disease as defined under the SRC Act, the delegate was not satisfied that the condition had been contributed to to a significant degree by employment with the Department of Human Services.
On 20 July 2018 the Applicant sought a review and on 20 August 2018 the Respondent issued a review of the decision, affirming the determination dated 3 July 2018. Then a further application for review was lodged with the Tribunal dated 2 November 2018.
The principal issues in relation to this matter are whether:
(a)the Applicant suffered an ailment and, if so, what is the ailment;
(b)was the ailment or aggravation of the ailment contributed to significantly by employment with the Commonwealth; or
(c)whether the Applicant’s ailment was an injury of which the Respondent is liable under section 14 of the SRC Act.
I adopt the key facts that are set out at paragraphs 3.1 to 3.14 of the Applicant’s Statement of Facts, Issues and Contentions as amended by the Respondent’s Statement of Facts, Issues and Contentions. After having gone through and checked these against each other and having heard the evidence I agree with the amendments as suggested by the Respondent.
The Applicant provided a statement and also gave sworn evidence. I found her to be a very truthful witness. I thought she was frank, made appropriate concessions in cross-examination and I have no hesitation accepting her evidence as truthful noting that quite appropriately the Respondent did not submit otherwise.
I find that the Applicant suffered lateral epicondylitis of the right arm and note that that fact does not seem to be disputed by either party. I rely upon as well:
(a)the ultrasound report dated 7 May 2018 which confirmed a moderate lateral epicondylitis and noted a full centimetre tear;[1]
[1] T4, T documents, p 43.
(b)the report of Dr Andrew Porteous, who is an occupational physician, dated 15 June 2018 noting, among other things, the diagnosis of right lateral epicondylitis. This is based upon the ultrasound and the clinical findings;[2]
[2] T 12, T documents, pp 91-96.
(c)the report of Dr Brett Oppermann, occupational physician, dated 4 March 2019 which included:
Ms Mansfield presents with right common extensor origin tendinopathy of the elbow (tennis elbow or lateral epicondylitis) as confirmed on ultrasound imaging and with her symptoms having been of onset in April 2018.[3]
(d)The report of David Humphries, sports medicine physician, who supplied a report to the Applicant’s general practitioner dated 14 June 2018 in which he stated:
The Applicant had some minor niggles over the lateral elbow extensor muscles for some time but they did not inconvenience her. I reviewed her scans and agree there is evidence of tendonitis.[4]
(e)The report of James Thomas, physiotherapist, dated 8 May 2018 which included:
On examination she indeed has a significant tennis elbow present.[5]
[3] TB6, Tribunal Book, p 75.
[4] TB10, Tribunal Book, p 125.
[5] TB7, Tribunal Book, p 85.
I find that the Applicant suffered a disease and the symptoms developed over time, although I note there does not appear to have been any significant or any prolonged indication of problems. I also note the report of David Humphries (referred to above) in relation to that point.
I note that Dr Sharman in his report dated 10 May 2019 recorded that:
Ms Mansfield reported that she developed a pain in the right elbow about Easter time during 2018.
Dr Sharman’s report was not straight-forward but he opined at page seven of that report:
While, at my assessment, there were some features of residual lateral epicondylitis consistent with the early ultrasound imaging findings, the findings of neural mechanosensitivity (supraclavicular tenderness and neural sensitivity with stretching) along with sensory disturbance affecting the ulnar digits (not just the thumb and radial digits) is not consistent with either lateral epicondylitis or carpal tunnel syndrome as a single explanatory diagnosis suggested by other practitioners.
While I would accept there have been some local epicondylar symptoms and that the initial ultrasound confirmed significant changes typical of that condition, the current or overall clinical picture suggests an upper limb neuropathic disorder involved the century fibres that emanate from C7/C8/T1 nerve roots to explain the sensory disturbance affecting the ulnar digits.
Dr Sharman then notes at page eight of that report:
I would favour a diagnosis of brachial plexus neuropathy related posture associated with keying on a background of local epicondylitis (extensor tendinopathy/tennis elbow).
In relation to this report, I note the following. Firstly, it was a report about a condition that existed when Dr Sharman saw the Applicant in 2019; which was about a year after the Applicant’s initial report, and comments by her general practitioner and the report done by Dr Porteous. I rely upon Dr Porteous’ report of 15 June 2018[6] to confirm a diagnosis of lateral epicondylitis and I also note that he says:
It’s part of an overarching constellation of symptoms.
[6] T12, T documents, pp 91-96.
At this stage I go no further than making my current finding that the Applicant suffered lateral epicondylitis of the right hand and that was an injury within the terms of the SRC Act.
The legislation at section 14 says:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
I note section 5A, definition of injury and section 5B, definition of disease, and then note that sub-section (3) states:
“Significant degree” means a degree that is substantially more than material.
The Respondent accepts that the Applicant suffered a disease or injury and would be entitled to compensation pursuant to section 14 of the SRC Act if there was a significant contribution by her emploment.
In considering whether the injury arose out of the Applicant’s employment, I quote from Telstra Corporation Limited v Bowden [2012] FCA 576 where Justice Murphy stated at paragraphs [32] to [39]:
[32] The words “arising out of employment” in subs 5A(1)(c) have their origin as part of the phrase “injury by accident arising out of and in the course of employment” in early workers’ compensation legislation in England and Australia. This phrase imposed two conditions before an injury could be compensable under the legislation. Because of the double condition the old authorities require both a temporal connection to employment through the words “in the course of” employment, and a causal connection through the words “arising out of” employment: see for example Dover Navigation Co Ltd v Isabella Craig [1940] AC 190 (“Dover Navigation”) at 199 per Lord Wright.
[33] The conjunctive “and” was removed and replaced by the disjunctive “or” in an amendment in 1948 to the Commonwealth Employees Compensation Act 1930 (Cth) (see the Commonwealth Employees’ Compensation Act 1948 – No 61 of 1948) which is the predecessor to the Act in this case. Since this amendment, for an injury to be compensable it has only been necessary for an employee to establish either that the injury arose out of employment or that it arose in the course of employment.
[34] Although only the “arising out of” employment limb of the double condition test is directly relevant in this case, the old authorities on the double condition test remain useful for the light they throw on the tests needed to meet the “arising out of” limb considered on its own. They are also useful in the guidance they provide as to the meaning of “employment” in the phrase “arising out of employment”.
[35] That the phrase “arising out of employment” requires a causal connection between the injury and employment is common ground.
[36] It is important to remember that the test of causation is one of common sense: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. In Migge v Wormald Bros Industries Limited [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) noted:
... causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.
The judgment of Mason JA was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Limited (1973) 47 ALJR 236.
[37] In a passage approved by the High Court in Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 (“Law”) per Aickin J at 647-648, with whom Gibbs, Stephen and Mason JJ agreed, the Full Court in Repatriation Commission v Law [1980] FCA 92; (1980) 47 FLR 57 said at 68:
It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.
...
The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.
What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.
[38] It is also important to remember that it is well settled that the purpose of the Act is remedial and is intended to give rights to employees. The appellate courts have repeatedly taken an approach to the provisions of the legislation which is generous to employees.
[39] Consistently with this, the authorities are clear that employment is not to be narrowly construed. “Employment” when used in the statutory definition of injury covers things belonging to or arising out of it: St Helens Colliery v Hewitson [1924] AC 59 at 71 per Lord Atkinson. In an often repeated statement, in Thom v Sinclair 1917 AC 127 (“Thom”) at 142 Lord Shaw noted that:
The expression in my opinion, applies to the employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of employment” apply.
When considering the employment, Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 133 said:
The question whether it occurs in the course of the employment must depend upon the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties. To be in the course of employment events must occur while the employee is doing something which is part of while the worker engaged in work which he is employed to do or something incidental to work
I also refer to O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000. Bromberg J who stated at paragraphs [39] to [40]:
[39] A number of cases have considered the second aspect of that test, that is, what is “something incidental to that work.” In Whittingham, Dixon J said (at 29) that that which is incidental to a worker’s work depends upon the sufficiency of the connection between the employment and the thing done by the employee, which is a matter of degree, in which time, place and circumstance, as well as practice, must be considered, together with the conditions of the employment. As Stephen J identified in Bill Williams Pty Limited v Williams [1972] HCA 23; (1972) 126 CLR 146 at 159, it is a consideration of those factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work. It is apparent from what was said at 478–9 of Hatzimanolis that the majority was setting down an organizing principle for determining when, in the context of an Interval, an injury was sustained while doing something incidental to employment:
Incidence of service, however, is not a principle the application of which will determine whether the injury was sustained in the course of employment; it is a conclusion. When a tribunal concludes that a worker sustained injury while doing something incidental to his or her employment, it records a result which must have been reached, consciously or unconsciously, by reference to some principle or standard which leads to that result. Furthermore, while the matters to which Dixon J. referred in Whittingham must be examined for the purpose of determining whether an injury was sustained in the course of employment, those matters do not automatically determine that question. Without the assistance of an organizing principle, a tribunal of fact cannot know which of them is or are determinative.
[40] The majority went on to identify a number of subsets of the overarching concept of “incidental to employment.” It observed (at 479) that Australian courts had almost invariably applied the test formulated by Dixon J in Henderson v the Commissioner of Railways (Western Australia) [1937] HCA 67; (1937) 58 CLR 281 when called upon to determine “whether an injury occurring during intervals between work was sustained ‘in the course of employment’” (emphasis added). It stated (at 483) that an injury is “more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work” (emphasis added), and gave examples of the two kinds of interval. In that context, it laid down (at 484) the organizing principle that it had set out to establish: “Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.”
Hatzimanolis was thus concerned with quite a limited area. The “course of employment” comprises duties and things incidental thereto. Hatzimanolis was concerned only with the latter. “Things incidental thereto” can include things occurring in intervals between two periods of work and intervals within an overall period of work. Hatzimanolis was only concerned with the latter. Hatzimanolis said only that if the test set out at 484 is fulfilled, then an injury sustained in an interval within an overall period of work will have been sustained during something incidental to the employee’s work, and therefore in the course of employment. Justice Bromberg summarised the Hatzimanolis principle at paragraphs [21] to [23] of that decision, making clear at paragraph [6] that the principle does not apply generally. Hatzimanolis was not expanded in Comcare v PVYW [2013] HCA 41; and against the background of the above case, there are several issues to clarify whether an injury is out of a person’s employment or was contributed to by the employment.
In Federal Broom Co Pty Ltd v Semlitch it was noted that the employer was concerned with what the employee actually does, not the mere fact of being employed. In Prain and Comcare [2014] AATA 593 this tribunal rejected the proposition that injury sustained during travel for medical treatment was an injury arising out of the Applicant’s employment.
The contribution may also be a matter of perception, as Justice von Doussa opined in Wiegand v Comcare Australia [2002] FCA 1464:
[31] It was open on the evidence for the tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
In Re Jones and Comcare [2013] AATA 334 an Australian Taxation Office employee put in a claim for an adjustment disorder that arose out of an unsuccessful application to Comcare for partial invalidity pension. The Tribunal found:
Any actions by ComSuper in relation to the assessment of the employer’s application, had no connection with the employment with the Commonwealth within the meaning of section 5B of the Act
When considering whether or not there was a significant contribution, I note that Dr Pemmulu expressed the view that the condition which she observed was related to a history of use of a computer mouse. I note that this is stated in the initial medical certificate and note that the Applicant constantly uses a mouse at work. Physiotherapist Mr James Thomas, in his letter to Dr Pemmulu dated 8 May 2018, notes:
I have suggested to Angela that she approach the workplace regarding an ergonomic assessment workstation as the use of the mouse had been a strong contributor to the condition.[7]
[7] TB7, Tribunal Book, p 85.

The general practitioner who examined the Applicant on 30 April 2018 noted the Applicant’s pain had become worse since increasing computer mouse use with increased data entry. There were in fact two ergonomic assessments carried out in relation to the Applicant’s workplace indicating that the workplace considered that there may be a contribution by her work. I note the Respondent’s contention that this is merely the workplace doing everything possible to look after the worker and not a concession or an admission that the workplace created the injury.
The assessor, Ms Lucas, who carried out the assessment, noted the Applicant did not always comply with the required five minute breaks.[8] I also note in the assessment report that clicking/navigating with the mouse constituted 67-100% of her total work time, 40 to 60 minutes in the hour or one lift every 15 seconds.[9] I also note that Ms Sheriff gave evidence that that was a reasonable description of the Applicant’s work.
[8] T Documents, T8, p 69.
[9] Ibid.
In the second occupational report dated 31 May 2018, the Applicant reported that:
Ms Mansfield reported that she has been experiencing pain in her right elbow and forearm with accompanying pins and needles in her right hand. Ms Mansfield advised that these symptoms have become particularly worrisome over the last 4-6 weeks and hence prompted her to seek medical attention. Ms Mansfield advised that repetitive movements seem to aggravate her symptoms, in particular mentioning mousing. In addition to the above symptoms Ms Mansfield noted that she has been advised there may also be evidence of carpal tunnel in the right wrist as she has been having sensation changes and difficulty gripping objects. Ms Mansfield noted that this has been improving however with treatment.[10]
[10] TB1, Tribunal Book, p 2.
In his initial report of 15 June 2018, Dr Porteous noted that he detected signs of reduced sensation over the third, fourth and fifth digits of the right hand as well as tenderness and other signs around the elbow. He said the following in relation to causation:
The diagnosis is Right Lateral Epicondylitis. This is based on the ultrasound and clinical findings today.
…
The diagnosis is not consistent with being caused by work.
…
There was an occupational study undertaken by NIOSH and although it is quite old it remains relevant. There is an increased risk of Right Lateral Epicondylitis occurring with occupations that require forceful right-hand activities. My understanding of the epidemiology is that there is no evidence that workers using a computer, including doing data entry, is associated with an increased risk and is not thought to be causative.
…
In my opinion, the most likely cause of the condition is age-related degenerative change and that is a substantial cause of her current condition.
…
There is no evidence that she suffered an exacerbation, aggravation or acceleration of a pre-existing condition
…
In my opinion, this condition became symptomatic when she just happened to be at work. In my opinion, it is independent of work activities she was doing.[11]
[11] T12, T documents, pp 94-95.
On the balance of probabilities, this condition has not been attributed to to a significant degree by employment at the Department of Human Services. In my opinion, on the balance of probabilities, her ongoing symptoms are a result of external pre-existing constitutional underlying degenerative factors. There is no evidence that any of the work activities she is required to do could cause aggravated, exacerbated, or accelerated pre-existing underlying degenerative change in the common extension of tendon attached to the right elbow.
Dr Porteous relied very heavily on a study by the National Institute for Occupational Safety and Health entitled Musculoskeletal Disorders and Workplace Factors, A Critical Review of the Epidemiologic Evidence for Work-Related Musculoskeletal Disorders of the Neck, Upper Extremity and Lower Back (the “NIOSH Study”). That study was compiled in 1997. There has been much discussion as to what use I can make of the literature in this case and I refer to a very useful summary set out by Member Taglieri in LHHL v Comcare [2018] AATA 3272, at parahraphs [101]-[104]:
[101] 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.
[102] 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.
[103] 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]).
[104] 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.
As I understand the evidence of Dr Porteous, he conceded that the NIOSH study did not state that the report found there was no relationship between computer mouse work and lateral epicondylitis. However, what he did say was that it was a very extensive study which, in particular, dealt with epicondylitis or elbow injuries, and there was no mention or reference to computer work. I spent some time looking at that report and there is, in fact, very little reference to computer work at pages 1-3. There were 92,576 injuries or illness that occurred as a result of repetitive motion, including typing and key entry, repetitive use of tools and repetitive placing, grasping or moving of objects other than tools.
At page 2-10 of the NIOSH Study it states:
Yu and Wong [1996] who chose to compare 90 data entry, data processing and computer programmers from an International Bank in Hong Kong and 61 infrequent uses of VDTs (video display terminals). Bothneck MSD case definition and exposure assessment were based on symptom data. Analysis controlled for “age and gender and other covariates” (as stated in the paper). For frequent VDT use an OR of 28.9 was found.
There were some other incidental references as well, but I note that there have been significant advances in computer technology since 1997 and, more importantly, nowhere in the report does it refer to mouse operations and computers. I do not consider that report does any more than state there was no evidence of any connection between data processing work and lateral epicondylitis. It does not say anything about computer mouse use.
I note a subsequent 2012 report, Occupational Exposure to Neck and Upper Extremity Disorders, A Systematic Review by the Swedish Council on Health Technology Assessment. Although the Tribunal only appears to have a summary, there are some conclusions which I found relevant. At page 4 of the report it notes that:
“Scientific evidence suggests that the following exposures involve risks for disorders and diseases in the:
…
- Elbows and forearms - heavy work (lifting (lifting, carrying, pushing, pulling) repetitive work, long-term use of computer mouse.
And then at page 10, under the heading ‘Elbows and Forearms’, it says:
Moderately strong scientific evidence indicates that repetitive work increased the risk of developing pain in the elbow and forearm.
And then at page 11, ‘Elbows and Forearms’, it says:
Moderately strong scientific evidence indicates that long term use of computer mouse increased the risk of developing pain in the elbow and forearm.
Although this report was criticised, or commented upon, by Dr Porteous to the effect that it was based mainly on self-reporting, I find it useful evidence to suggest a significant relationship between pain in the elbows and use of computer mouses.
A further report compiled by the Health Council of Netherlands in 2012 entitled Computer Use at Work was referred to, and its findings were similar to the latest Swedish study. At page nine, under the heading ‘Extent of Computer Use and Related Health Complaints’, it states:
In 2004 over three million workers indicated they regularly used a computer at work. On average, a Dutch worker spent 3.8 hours per day behind a computer monitor in 2010. Private computer use is also increasingly common
…
(I note, in passing, this is talking about computer use becoming increasingly common in 2004; whereas the NIOSH Study was conducted in 1997.)
Studies show that workers using a computer may develop health complaints. One in three Dutch people states to experience arm, wrist, hand, shoulder or neck complaints ‘regularly’ or ‘persistently’. These complaints are described as pain, stiffness and tingling/numbness. It is known that a proportion of these people may develop chronic complaints with clear adverse health effects. This may affect not only daily well-being, but also result in a loss or productivity at work and sick leave. Computer use does not only lead to physical complaints. Sleeping disorders, psychological complaints and eye complaints are also reported by workers, however, there are no suitable studies available to quantify these complaints.
There is a table that appears at page 11 of the report, which talks of incident complaints after computer use. I note that these are self-reported, but I still consider it material upon which I can base my consideration; and the third column in the table contains additional instances of hand/arm complaints. I find that epicondylitis would fall into that definition. I note that the table shows that those who had zero (“none”) hours of mouse use per week had a zero additional indicences of hand/arm complaints. Those who used a mouse 10 hours per week had 4.6% additional incidences; those who used a mouse 20 hours per week had 10.5%; and Those who used a mouse 30 hours, which seems to be about the applicant’s use of the computer mouse per week, had a 17.4% incidence increase of had/arm compaints. Even if the use of the computer mouse was only 20 hours per week, it was still a 10.5% increase. Additionally, page 11 also discusses possibilities for operational exposure limits and a threshold value below which no physical health effects occurred due to computer use cannot be given.
Furthermore pages 25 to 27 of the report outline the following:
The previously described Danish longitudinal study among over 5,000 technicians also investigated pain complaints of the forearm, elbow, and wrist/ hand.32 Kryger et al. (2002) described that mouse use (with the right hand) during five to nine hours per week increased the risk of moderate pain complaints in the right forearm (OR = 2.7; 95% CI 1.3-5.6). An increase in the number of hours of mouse use also led to an increased risk of complaints; over thirty hours per week of mouse use resulted in a risk of complaints seven times higher than for no or minimal mouse use (OR = 7.3; 95% CI 3.1-1.17). The investigators found that use of a keyboard for twenty hours per week or more also resulted in a statistically significantly increased risk of moderate forearm pain complaints (OR = 2.9; 95% CI 1.2-7.1). At the beginning of the study, 4.3% of employees had right forearm complaints and 1% had left forearm complaints. After one year, the incidence of new right forearm complaints was 1.3%, and the incidence of left forearm complaints was 0.4%. The physical examination found none of these new cases was due to nerve impingement.
Two years later, Lassen et al. published results relating to pain complaints in the elbow and wrist/hand.33 Use of a mouse from five hours per week increased the risk of wrist/hand complaints (OR = 2.16; 95% CI 1.46-3.22) and elbow complaints (OR = 2.35; 95% CI 1.51-3.70). All of these examined pain complaints increased with the number of hours of mouse use per week. For thirty hours or more per week, the risks of wrist/hand and elbow complains were three to four times higher than for no or minimal mouse use (ORwrist = 3.05; 95% CI 1.63-5.67; ORel = 4.74; 95% CI 2.51-8.95). The associations between keyboard use and elbow or wrist/hand pain complaints were less clear than those for mouse use. With twenty hours or more of keyboard use, there was only a statistically significant association with wrist/hand complaints (OR = 1.61; 95% CI 1.13- 2.28). At the start of the study, 27.5% of employees reported right elbow pain (5.5% severe), and 46.2% had complaints in the right wrist/hand (8.1% severe). After one year, 14.1% of participants had developed right elbow complaints (2.7% severe); this figure was 21% for the right wrist/hand (4.0% severe).
Comparable effects due to mouse use were found in the previously described prospective cohort study among Swedish computer users.25 Hagberg et al. (2007) found that with thirty minutes to three hours of mouse use per day, the risk of decreased productivity due to forearm and hand complaints increased significantly (HR = 2.1; 90% CI 1.12-4.08). With mouse use for more than three hours per day, this risk was not significantly elevated, however (HR = 1.4; 90% CI 0.52-3.63). No associations were found between the number of hours of computer use, data entry per day, or continuous computer use without interruption and decreased productivity due to forearm/hand complaints. Tornqvist et al. (2009) examined the incidence of arm/hand symptoms in the same cohort.30 Employees who used a mouse for at least thirty minutes per day were about one and a half times more likely to develop arm/hand complaints (OR = 1.44; 95% CI 1.01-2.05) than employees who spent less than thirty minutes per day using a mouse. With three or more hours of mouse use per day, complaints increased further (OR = 1.70; 95% CI 1.07-2.70). The incidence ratio of arm/hand complaints was 47 cases per 100 person-years. This study also found no associations between arm/hand complaints and the number of hours of computer use, data entry or continuous computer use without interruption.
In the two-year prospective cohort study by IJmker et al. (see Section 3.3), employees who reported four hours or more of computer use per day were almost twice as likely to develop arm/wrist/hand complaints (RR =1.9; 95% CI 1.1-3.1) than employees who were exposed for fewer than four hours per day.26 The investigators found no association between arm/wrist/hand complaints and self reported mouse use or registered computer, mouse or keyboard use. The incidence of serious arm/wrist/hand complaints per three months varied between 2.8 and 4.6%.
Marcus et al. (2002) investigated risk factors for musculoskeletal disorders in a prospective cohort study among about 600 computer users.29 Participants reported the hours spent using a keyboard and hand/arm complaints weekly. Employees with hand/arm complaints were examined clinically. The investigators found an elevated risk of hand/arm symptoms and conditions per hour of keyboard use per week (HR=1.04; 95% CI 1.02-1.06). In a prospective cohort study among almost 2,000 office workers in 2004, 60% of whom were women, Juul-Kristensen et al. examined the effect of computer use on the frequency and intensity of elbow complaints.27 This study showed that working with the computer for almost the entire day did not result in an increased risk of elbow complaints (OR = 1.08; 95% CI 0.60-1.93).
Two cross-sectional studies into computer use and wrist/hand complaints support the longitudinal data. In a study among 84 computer programmers, Shuval (2005) found that employees who reported working with a computer for more than seven hours per day had four times as many wrist/hand complaints (OR = 4.39; 95% CI 1.27-15.17) as employees who were exposed for fewer than seven hours per day.35 With more than nine hours of computer use per day, there was no significant association with the number of wrist complaints (OR = 1.73; 95% CI 0.39-7.56).
The cross-sectional study by Walker-Bone et al. (2006) among over 4,000 patients from two general practices found that the incidence of non-specific wrist complaints was not statistically significantly increased for one hour or more of keyboard use per day (OR = 1.3; 95% CI 0.8-2.1).34 Tenosynovitis of the wrist, however, was three times as common among these employees (OR = 3.1; 95% CI 1.3-7.8).
In particular, I note on page 26:
Comparable effects due to mouse use were found in the previously described effective comparable study amongst Swedish computer users. Hagler et al 2007 found that 30 minutes to three hours of mouse use per day the risk of decreased productivity due to forearm and hand complaints increased significantly.
When considering whether or not there was a significant contribution, I have to be careful not to fall into the temporal trap or the no-other-cause trap. In relation to the temporal trap, I note that there was computer use over extended periods of time before any symptoms became present. However, the symptoms either lessened or ceased when there was no mouse work. The mere fact that the reports themselves talk about continual use of computer mouses over a period of time suggests that they accept that this is not something that occurs immediately when you start using a computer mouse, but will develop over a period of time. In the Applicant’s case, she has been using a computer mouse since about 2007. Although it was disputed by one of the witnesses but accepted by another of the work supervisors, the Applicant stated that the mouse use increased significantly since the introduction of the new system in 2016.
It does not follow that because there was no obvious cause it must have been the computer mouse, but it is a matter I can take into account. Additionally, there was no other obvious cause to weigh up as a factor, apart from that put forward by Dr Porteous, who suggested a form of degenerative change because of the Applicant’s age, bearing in mind she was 41 at the time, and the evidence seems to suggest that degenerative changes can start to become obvious in the forties and fifties. I am not satisfied that there is sufficient evidence to justify a conclusion of a degenerative change, noting that Dr Porteous seems to have assumed a degenerative change because there was no other cause apparent to him, bearing in mind he said it could not have been caused by computer work because he relied upon the 1997 NIOSH Study.

It would appear that Dr Porteous may well have fallen into a trap I have to be careful not to fall into myself, and that is, because I cannot find anything else it must be, that it must have been caused by degenerative changes. Considering all the evidence, and considering the reports I have gone into and considering the evidence of the applicant in particular, I am satisfied there has been a significant contribution to her injury caused by the workplace. This leads me to whether or not I need to deal with brachial plexus neuropathy.
As I have indicated, the problem with Dr Sharman’s report was he was dealing with an injury presented to him sometime after the initial assessments and the submitting of a claim.
The Respondent criticises Dr Sharman’s evidence as being problematic for a number of reasons. Firstly, he is of the opinion that the Applicant worked up to 50 hours per week. In fact, in the period beginning 22 January 2018 or, many of the other relevant periods, she was working less than 35 hours per week and the maximum seemed to be 45 hours per week. I note that in April she worked 44 hours on 9 April but in none of the weeks approached 50 hours per week.
Dr Sharman also took no history of the breaks taken by the Applicant and said that he really needed to visit the workplace. I note that he wanted to visit the workplace but did not and, therefore, should have relied upon questions from the Applicant. He was equivocal about the diagnosis of lateral epicondylitis but, even though he said it was questionable at one stage, he maintained the diagnosis, which is in accordance with the other six reports I have referred to. However, I do not accept the Respondent’s criticism to the effect that Dr Sharman seems to have so diagnosed the Applicant’s symptoms because he could find no other cause in the circumstances because he had not inquired adequately into other possibilities.
To address the brachial plexus neuropathy I would have to make a finding in relation to the question of jurisdiction. Both parties have made very helpful submissions in relation to that question but, in view of the findings I have already made, I consider it unnecessary to go down that path. I have already made a finding that the Applicant suffers from lateral epicondylitis in the right arm, that that is an injury within the definition of an injury or disease in the SRC Act, and that her workplace made a significant contribution to that injury.
Accordingly, I make the following orders.
The reviewable decision dated 20 August 2018 be set aside and substituted with the following decision:
a.Comcare is liable to pay compensation to the Applicant under section 14 of the SRC Act in respect of right lateral epicondylitis deemed to have been sustained on 30 April 2018;
b.Comcare to pay the Applicant’s reasonable legal costs and disbursements in accordance with section 67 of the SRC Act; and
c.I find it is not necessary to make a decision in respect of the right brachial plexus neuropathy.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.

........................[sgd]..............................
Associate
Dated: 6 October 2020

Date of hearing: 4, 7 & 8 September 2020

Solicitor for the Applicant:

Counsel for the Applicant:

Ms G Giunta

Mr B Hilliard

Solicitor for the Respondent:
Ms N Richards

Counsel for the Respondent: Mr R Ternes

Date of hearing:	4, 7 & 8 September 2020
Solicitor for the Applicant: Counsel for the Applicant:	Ms G Giunta Mr B Hilliard
Solicitor for the Respondent:	Ms N Richards
Counsel for the Respondent:	Mr R Ternes