Martin and Comcare (Compensation) - [2021] AATA 2455

Martin and Comcare (Compensation) [2021] AATA 2455 (23 July 2021)
Division:GENERAL DIVISION
File Number(s):      2020/1774
Re:Daniel Martin
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member D O'Donovan
Date:23 July 2021
Place:Canberra

The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant in respect to his chronic exertional compartment syndrome under section 14 of the SRC Act.
........................[sgd]................................................
Senior Member O'Donovan
Workers compensation – initial liability – chronic forearm pain associated with typing – chronic exertional compartment syndrome – whether Comcare is liable to pay under section 14 of the Safety, Rehabilitation and Compensation Act 1988 - decision under review set aside
Administrative Appeals Tribunal Act 1975 s 29
Safety, Rehabilitation and Compensation Act 1988 s 14, 5A, 5B
Australian Postal Corporation v Bessey [2001] FCA 266
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Mellor v Australian Postal Corporation & anor [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Tippett v Australian Postal Corporation [1998] FCA 335
Pritchard et al. Chronic compartment syndrome, an important cause of work-related upper limb disorders. Rheumatology 2005; 44
Lipschitz AH, Lifchez SD, Measurement of compartment pressures in the hand and forearm, JHS 2010; 35A
Meehan, WP and O’Brien, MD, Chronic exertional compartment syndrome, UptoDate, 2020.
REASONS FOR DECISION
Senior Member O'Donovan
23 July 2021
Introduction

The applicant is an IT Worker in the Australian Signals Directorate (ASD). In 2018 he experienced the onset of pain in his forearms associated with typing. He sought compensation in relation to this pain but his claim was rejected by the respondent.
Cases of forearm pain are commonplace in the Australian Public Service and can often raise difficult questions of diagnosis and causation in circumstances where few signs other than the subjective experience of pain by the claimant are present. Fortunately, this is not such a case. There is objectively measured pathology in the applicant’s forearms demonstrated by abnormal muscle compartment pressure tests. These tests (as well as the applicant’s clinical presentation) have led a number of his treating doctors and independent medical examiners to conclude with confidence that the applicant suffers from the ailment ‘Chronic Exertional Compartment Syndrome’ (CEC Syndrome). Notwithstanding the confidence of those practitioners, the respondent invites the Tribunal to treat that diagnosis with scepticism. Further, the respondent submits, even if that diagnosis is accepted, it does not provide an answer to the question of whether the applicant’s work contributed to a significant degree to either the ailment itself, or the significant aggravations of it which occurred over a number of years. While the objections raised by the respondent are not without substance, I am satisfied that the applicant does indeed suffer from CEC Syndrome and his employment contributed to that ailment to a significant degree.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Martin and Comcare (Compensation)

Details

AGLC: Martin and Comcare (Compensation) [2021] AATA 2455
Case: [2021] AATA 2455
Decision Date: 23 July 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Martin, against a decision by Comcare regarding compensation for a diagnosed condition. The applicant, who worked in IT, experienced pain and tightness in his forearm which he attributed to his work activities, particularly typing. Despite initial symptom relief when ceasing typing, the pain recurred upon resuming work and was exacerbated by other activities. The applicant sought compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), alleging his employment significantly contributed to his condition or its aggravation.

The primary legal issues before the Tribunal were whether the applicant suffered from Chronic Exertional Compartment Syndrome (CEC Syndrome) and, if so, whether his employment with ASD contributed to the condition to a significant degree or significantly aggravated an existing condition. The Tribunal was required to assess the medical evidence presented by various specialists to determine the correct diagnosis and the causal link between the applicant's work duties and his symptoms.

The Tribunal found the medical evidence strongly supported a diagnosis of CEC Syndrome, particularly the opinions of treating and independent medical examiners, including the applicant's treating orthopaedic surgeon whose proposed surgery was based on this diagnosis. The Tribunal was persuaded by the coherence and consistency of the medical opinions supporting the diagnosis, noting that while some doctors expressed reservations, these were outweighed by the substantial evidence favouring CEC Syndrome. Furthermore, the Tribunal was satisfied that the applicant's employment significantly contributed to his condition. This conclusion was based on the applicant's work history, the nature of his duties involving extensive keyboard use, the absence of prior symptoms or similar conditions, and the fact that non-work-related activities did not provoke symptoms. The Tribunal noted that the applicant's condition developed after nearly two years of employment, during which keyboard work constituted the majority of his duties, and that no other identified causes had provoked symptoms.

Consequently, the Tribunal set aside Comcare's decision and substituted a new decision finding Comcare liable to pay compensation to the applicant for his CEC Syndrome under section 14 of the SRC Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In relation to the various medical witnesses, I was satisfied that they were all endeavouring to provide clear reasons for their view concerning the diagnosed condition. As CEC Syndrome is rare in the forearms and there are no recorded cases of it manifesting in precisely the way it has done in the applicant, it is not surprising that there were differences of opinion. Ultimately, I was persuaded by the coherence and consistency of the doctors who were supportive of the diagnosis of CEC Syndrome. There was in my assessment ample justification for them reaching the views that they did.Facts As noted previously the applicant works in IT at ASD. He worked there for almost three years without experiencing any symptoms. In 2018 he attended the gym for a couple of hours most weeks and undertook bouldering (a form of indoor rock-climbing) about once a month. These activities did not provoke any symptoms. He first noted pain and tightness ‘like a rock’ in his upper forearm on 12 November 2018. He reported the symptoms to his supervisor when they began but didn’t take any specific action in response. By 14 November the problem was serious enough that the applicant went to see his GP who recommended he take 5 days off and avoid typing over the weekend. The pain stopped completely. The applicant returned to work on 19 November 2018 but subsequent typing caused the pain to return. The applicant took time off for study purposes the following week but was unable to type up his CIT assignment because doing so was too painful. He enlisted the help of his mother and girlfriend to undertake the typing required. Pain associated with typing continued in the following weeks. The applicant also noticed that other activities provoked pain. These included chopping vegetables, holding a book and holding playing cards. The pain was bad enough in early December that the applicant went to his physio who instructed him to take a week off work and not to type during that week and to limit future typing if pain persisted. The pain in his arms did not reduce over that week. It re-occurred when he resumed typing in the lead-up to Christmas. He reduced his hours to 3.5 hours per day and ceased typing altogether. The applicant did not type over the Christmas stand-down period but the pain persisted. When the applicant returned to work he put in a formal report concerning his problem. In that report he said:…I currently cannot type without pain, and am concerned that I will further injure my arms if I do so. I am concerned to the extent that where possible, I have been dictating messages for other people to type. Between January and August 2019 the problem persisted despite the applicant working reduced hours and limiting his typing and other aggravating activities as much as possible. After an ergonomic assessment in February, he slowly built up his hours from 3 hours per day up to 5.5 hours per day. On 15 August 2019 the applicant had a significant flare-up at work whilst typing. He stopped immediately as the pain was above normal levels. The pain was sufficiently bad that it caused him to leave work. He was then placed on further reduced hours.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the factors in section 5B(2) of the Act, I am satisfied that a finding of a significant degree of contribution to the condition is appropriate. The applicant had been working at ASD for almost two years when the condition came on. In that time, keyboard work was the overwhelming bulk of his duties. The applicant had no history of compartment syndrome prior to commencing with ASD. None of the non-work-related activities which have been identified as possible causes have provoked any symptoms of the condition. The applicant has had other medical conditions but none which have any relevance to the onset of his CEC Syndrome. In these circumstances and in light of the supportive medical opinions I am satisfied that the applicant’s CEC Syndrome was contributed to to a significant degree by his employment at ASD.DECISION The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant in respect to his chronic exertional compartment syndrome under section 14 of the SRC Act.

Ratio Decidendi

Legal Principle Established

At the hearing, the applicant gave evidence concerning the onset and progress of his condition as well as his activities outside of work. Drs Damiani, Wilkins, Le Leu and (briefly) Dr McGill gave evidence. Each of the doctors called stood by the views reflected in their reports. Consideration The applicant has put forward a significant amount of evidence in support of the proposition that the applicant suffers from CEC Syndrome and that the applicant’s employment either:(a)contributed to the condition to a significant degree, or (b)significantly contributed to an aggravation of the condition. Diagnosis Dealing first with the evidence concerning the proper diagnosis. At the hearing three doctors gave evidence that the applicant suffered from CEC Syndrome: Dr Damiani, Dr Wilkins and Dr Le Leu. Other doctors have given strong support or qualified support to such a diagnosis. They include Dr Howse, Dr Gillespie and Dr Ghosh. The mix of doctors supporting the diagnosis is unusual in that it includes treating doctors, independent medical examiners engaged by Comcare and independent medical examiners engaged by the applicant’s employer. The applicant’s treating orthopaedic surgeon Dr Damiani was so convinced that the applicant suffered from CEC Syndrome that he was prepared to undertake a major operation on the basis of this diagnosis. The success of the surgery in alleviating symptoms strongly suggests he was right. While a number of other doctors expressed reservations about the diagnosis over the course of the applicant’s treatment, the only doctor who expressed any reservation in the last 6 months is Dr McGill. He was, as the applicant pointed out, an outlier in resisting the conclusion that the applicant suffers from CEC Syndrome. Of course being an outlier is not a reason in itself to dismiss the views of Dr McGill - as Einstein once said in response to the book One Hundred Authors Against Einstein which was critical of his theory of relativity – ‘if I were wrong, one would have been enough.’ The more important point is that upon close scrutiny the criticisms of the diagnosis levelled by Dr McGill do not weaken the basis on which the diagnosis was reached by Dr Damiani. I examine these further below.Employment contribution Dealing then with the question of employment contribution to the condition, the evidence assembled by the applicant that the applicant’s employment significantly contributed to at the very least the aggravation of his symptoms is also compelling. There was a clear requirement for the applicant to type as part of his duties and his consistent report has been that it is the activity of typing which brings on the pain from which he suffers. Dr Damiani described the applicant’s condition as ‘secondary to repetitive work-related activity’. Dr Le Leu noted that the applicant’s symptoms can ‘predictably be brought on by typing for 30 minutes or more; it then takes two hours for his symptoms to recover’. He concluded that the applicant’s forearm symptoms arose from employment with ASD. Dr Wilkins in his oral evidence expressed similar views.