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

1. 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.

2. 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.    

   Background

3. In 2016 the applicant commenced work with ASD soon after he left school. He was employed under an IT apprenticeship scheme which required him, in addition to his work at ASD, to undertake a CIT Certificate IV course in IT. He was deployed in the Enterprise Software Services section of ASD. When he finished the apprenticeship towards the end of 2017 he was promoted to an APS 3 position. At the start of 2018, with the approval and encouragement of his workplace, he commenced a part-time diploma in software development. He undertook the bulk of his study during work hours which was permitted under the Study Bank scheme used by ASD.

4. In May 2018 he was promoted to an APS 4 position within Enterprise Software Services. His primary tasks in the role were writing code, supporting the back end of ASD’s applications and emailing end users. The majority of his day was spent at his desk on the keyboard with few interruptions.

5. In November 2018 the applicant developed pain in his forearms which was associated with typing. The pain restricted his typing activities both inside and outside work. When symptoms were not fully relieved by time away from work over Christmas, he formally reported his problem to his workplace in early 2019.

6. On 1 October 2019, following a severe aggravation of his symptoms in August 2019, the applicant submitted a claim for workers’ compensation.

7. In the claim he described the condition as ‘postural muscular pain in forearms and wrists’. He noted that both right and left forearms and wrists were affected. That claim was denied on 29 November 2019. The applicant sought internal review on 12 December 2019 and the original decision to deny the claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) was affirmed on 17 February 2020. An application was made to this Tribunal on 23 April 2020 and proceeded to hearing on 5-7 July 2021.

8. As the applicant’s claim progressed through the compensation system, his treating practitioners became convinced that the applicant suffered from CEC Syndrome. In mid-2020 muscle compartment pressure testing was conducted on the applicant. The applicant’s treating surgeon was persuaded by the pressure testing that CEC Syndrome was the correct diagnosis. He offered to perform surgery to address the problem. The applicant initially sought more conservative treatment options, but ultimately decided that surgery was warranted. The surgery was performed in February 2021 and appears to have alleviated the applicant’s symptoms.

9. The respondent however casts doubt on whether the applicant suffers from CEC Syndrome. The respondent contends that the applicant has at this point a collection of subjective symptoms of uncertain origin that cannot be attributed to any specific physiological cause, and therefore do not give rise to liability under the SRC Act. Further, the respondent contends that even if the applicant suffers from CEC Syndrome (or an aggravation of the Syndrome) there is insufficient evidence that the ailment (or aggravation) was contributed to to a significant degree by the applicant’s employment.

10. It is on these bases that the respondent maintains that the applicant does not meet the threshold requirements in section 14 of the SRC Act.

    Relevant legislation

11. Section 14 relevantly provides:

    Compensation for injuries

    (1)  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.

    (2)  Compensation is not payable in respect of an injury that is intentionally self-inflicted.

    (3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

    An injury under the Act is defined in section 5A as:

    Definition of injury

    (1)In this Act:

    "injury" means:

    (a)  a disease suffered by an employee; or

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

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

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

    A disease under the Act is defined in section 5B as:

    Definition of disease

    (1)  In this Act:

    "disease" means:

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

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

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

    (a)  the duration of the employment;

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

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

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

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

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

    Evidence

12. The Tribunal had before it the following exhibits:

    (a)Section 37 T-Documents filed 21 May 2020 (Exhibit 1);

    (b)Applicant's Statement filed on 23 July 2020 dated 23 July 2021 (Exhibit 4 – Exhibit numbers 2 and 3 were not used);

    (c)Report of Dr Charles Howse, Sports Physician filed on 10 June 2020 and 22 July 2020 dated 4 February 2020 (Exhibit 5)

    (d)Report of Dr Sindy Vrancic, Orthopaedic Surgeon filed on 10 June 2020 dated 5 February 2020 (Exhibit 6).

    (e)Report of Dr Raymond Kuan, Radiologist filed on 22 July 2020 dated 7 February 2021 (Exhibit 7).

    (f)Report of Dr Charles Howse, Sports Physician filed on 22 July 2020 dated 2 March 2020 (Exhibit 8).

    (g)Report of Dr Charles Howse, Sports Physician filed on 22 July 2020 dated 21 April 2020 (Exhibit 9).

    (h)Report of Dr Peter Wilkins, Consultant Occupational Physician filed on 22 July 2020, dated 5 June 2020 (Exhibit 10).

    (i)Report of Dr Le Leu, Occupational Physician (filed on 4 September 2020) and briefing letter, dated 30 July 2020 (Exhibit 11).

    (j)Report of Dr Michael Gillespie, Consultant Orthopaedic Surgeon and briefing letter (filed on 21 April 2021 by the respondent) dated 23 September 2020 (Exhibit 12).

    (k)Report of Dr Maurizio Damiani, Hand and Upper Limb Surgeon filed on 4 February 2021 dated 29 January 2021 (Exhibit 13).

    (l)Post-surgical report of Dr Maurizio Damiani, Hand and Upper Limb Surgeon filed on 11 March 2021, dated 25 February 2021 (Exhibit 14).

    (m)Clinical summary of Dr Maurizio Damiani, Hand and Upper Limb Surgeon filed on 21 April 2021, dated 20 April 2021 (Exhibit 15).

    (n)Supplementary report of Dr Peter Wilkins, Consultant Occupational Physician filed on 25 June 2021, dated 18 June 2021 (Exhibit 16).

    (o)Report of A/Prof Neil McGill, Consultant Rheumatologist filed on 17 November 2020 and briefing letter, dated 23 October 2020 (Exhibit 17).

    (p)Supplementary report of A/Prof Neil McGill, Consultant Rheumatologist (filed on 21 May 2021) and briefing letter, dated 21 May 2021 (Exhibit 18).

    (q)Recovery at Work Plan 4 (post-operatively) dated 15 June 2021 (Exhibit 19)

    (r)Documents relating to undertaking of study and its relationship to work, including:

    (i)APS Performance Agreement Start Cycle Assessment;

    (ii)Department of Defence Application for Studybank;

    (iii)APS Performance Agreement End Cycle Assessment (Exhibit 20).

    (s)Document headed "Timeline Dan Martin" (Exhibit 21).

    (t)Report of Dr Damiani dated 23 March 2021 (Exhibit 22).

    (u)Letter from Dr Bisley to Dr Maurizio Damiani dated 20 February 2020 (Exhibit 23).

    (v)Certificate for Capacity Work with date of assessment 16 September 2019 ( (Exhibit 24).

    (w)Certificate of Capacity for Work with date of assessment 11 June 2020 (Exhibit 25).

    (x)Letter from Dr Seema Sharma to Dr Stephan Praet dated 11 June 2020 (Exhibit 26).

    (y)Letter from Dr Sindy Vrancic to Dr Seema Sharma dated 5 February 2020 (Exhibit 27).

    (z)Letter from Jamie Harradine to Dr Seema Sharma dated 11 September 2019 (Exhibit 28).

    (aa)A Letter from Dr Stephan Praet to Dr Seema Sharma bearing date 3 July 2020, sent on 22 July 2020 (Exhibit 29).

    (bb)Certificate of Capacity for Work dated 7 August 2020 (Exhibit 30).

    (cc)Certificate of Capacity for Work dated 7 September 2020 (Exhibit 31).

    (dd)Article by Scott J Mubarak et al, 'Acute Compartment Syndromes: Diagnosis and Treatment with the Aid of the Wick Catheter' from the Journal of Bone and Joint Surgery Vol 60-A. No 8, pp 1091-1095, December 1978 (Exhibit 32).

    (ee)Letter from Dr Seema Sharma to Dr Charles Howse dated 13 December 2019 (Exhibit 33).

    (ff)Notes of Wattle St Medical Practice through to 11 June 2020 (Exhibit 34).

    (gg)Notes of Wattle St Medical Practice for period 3 July 2020 to 18 May 2021 (Exhibit 35).

13. In addition the Tribunal heard oral evidence from:

    (a)The applicant;

    (b)The applicant’s treating orthopaedic surgeon Dr Damiani;

    (c)Dr Le Leu

    (d)Dr Wilkins; and

    (e)Associate Professor McGill.

14. In relation to the applicant I was satisfied that he was making a conscientious effort to remember his activities over the past three years and to accurately describe how his symptoms waxed and waned in that time. He was a truthful witness and did his very best to assist the Tribunal with as accurate an account as he could manage in the circumstances. I did however have the impression that to some degree his memory of things had begun to conform more closely to the attributes of CEC Syndrome than may actually be the case. This is understandable given that by the time he gave evidence he had been diagnosed with the condition and successfully treated and had given multiple accounts of the progress of the ailment to multiple doctors. Given that impression, when deciding questions of fact, I have preferred to rely on the applicant’s contemporaneous accounts of his symptoms recorded in various documents, rather than relying on his oral evidence. My preference for that evidence reflects the reality that a human’s memory of events can fade and alter over time.

15. 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

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. Throughout this period the applicant was receiving treatment and undergoing investigations to diagnose the cause of his problems.

23. On 1 October 2019 the applicant submitted his workers’ compensation claim and on 31 October 2019 he was assessed at Comcare’s request by Dr Ghosh, a consultant occupational physician. Dr Ghosh stated in his report that it was his ‘impression…that Mr Martin has bilateral compartment syndrome’. He noted that the ‘repetitive nature of computer work has contributed to the condition’. Dr Ghosh did however give some ambiguous answers to other questions concerning the relationship between the condition and work. This may account for Comcare’s decision to decline liability. That decision was made on 29 November 2019.

24. In January 2020 the applicant’s GP referred him to Dr Howse, a specialist sports physician. In a report dated 4 February 2020 Dr Howse advised that the applicant had signs of possible chronic flexor tendonosis and mild flexor compartment syndrome. The following day, orthopaedic surgeon Dr Vrancic reported ‘I see no evidence of compartment syndrome today but if he is concerned he should proceed with the compartment pressure testing.’

25. Shortly after this, Comcare affirmed its original decision to reject liability. It did so on the basis that a precise diagnosis was not available which linked the applicant’s condition to his employment.

26. In the same period the applicant also saw Dr Karen Bisley, a sport and exercise medicine physician. In her report dated 20 February 2020 she expressed the view that ‘the pain distribution does not fit compartment locations and I don’t believe he has compartment syndrome. It fits more with the course of the median nerve.’

27. In March 2020 the applicant underwent compartment pressure testing with Dr Howse.

28. To understand the nature and significance of this testing, a short discussion of human anatomy is required.

29. The muscle groups within the upper and lower limbs (and elsewhere in the body) are divided into different compartments. Each compartment consists of a muscle group, nerves and a soft tissue casing which encloses the muscle group. This casing is called fascia. Fascia is a relatively inelastic soft tissue which holds the muscle group in shape and in place. In the applicant’s case, two upper limb compartments were implicated - the deep flexor compartment and the superficial flexor compartment.

30. Pressure tests are undertaken by inserting a needle into the muscle compartment which is then attached to an instrument which measures the pressure in the compartment in millimetres of mercury (mmHg). The normal pressure range for a forearm muscle compartment is between 0mmHg and 8mmHg. The measurements taken by Dr Howse were taken approximately 1 minute after the applicant ceased a squeezing exercise. The results were 25mmHg for the left and 26 mmHg in the right. Dr Howse in his later report noted that a result greater than 20mmHg was diagnostic and that the results confirmed a chronic bilateral superficial and deep flexor compartment syndrome.

1. Following this pressure testing on 23 March 2020 the applicant attended an appointment with orthopaedic surgeon Dr Maurizio Damiani. At this stage the applicant could only work for one hour before developing painful symptoms. Dr Damiani described the results obtained by the pressure testing as ‘slightly elevated pressures’. He referred the applicant back to Dr Howse to repeat the pressure tests.

2. Dr Howse repeated the tests in April 2020. In preparation for the test, the applicant undertook 2-3 hours of keyboarding and underwent 15 minutes of bilateral hand squeezing exercises which produced palpable tightness and discomfort in the flexor compartments. In the superficial flexor compartment the result was a pressure of 25mmHg on the right and 26mmHg on the left. In the deep flexor compartment the result was 22mmHg on the right and 23 mmHg on the left.

3. The applicant returned to Dr Damiani following the results and was given the option of undertaking surgery. The aim of surgery is to release the tightness in the fascia enclosing the compartment so that pressure in the muscle compartment does not build up when the aggravating activity is performed. It is highly invasive surgery conducted under a general anaesthetic. The applicant opted for non-operative management of his condition at the time.

4. On the 30 April 2020 the applicant was certified unfit for work and ceased work altogether. While he was off work, the length of time that the applicant could spend typing without provoking pain gradually improved. Over the next six months he pursued other non-invasive therapies including attending a pain psychologist and a sports physician. No resolution of his typing associated symptoms was found.

5. In June 2020 the applicant was sent to see Dr Wilkins, an occupational physician, engaged by his employer. He reported that he had benefited from the time off work and his symptoms had reduced but following the second round of pressure testing he had had a flare up and at the time he saw Dr Wilkins had ‘constant background aching pain in both forearms’. At that point in time he had been avoiding keyboarding and other tasks which he knew were likely to cause a flareup in his pain.

6. Dr Wilkins’ view at that point in time was that diagnosis had not been definitively established. One of the diagnoses which he was prepared to entertain was ‘exertional flexor forearm compartment syndrome’. Dr Wilkins did not consider the applicant fit for a graduated return to work.

7. In July 2020 the applicant was assessed by independent medical examiner Dr Leon Le Leu. Dr Le Leu is an occupational physician. The applicant’s symptoms at that time were recorded in the following terms:

   He does not have pain in either forearm – it is more an awareness that the forearms feel different;

   Last week he typed up an email for 30 minutes to test the state of his arms. Over that half hour, he felt increasing pain in the flexor compartment of the forearms, and they became very tense. The pain went away after two hours…

   The longer he does an activity like that, the tighter the flexor compartment becomes and the longer rest he needs for recovery. 

8. Dr Le Leu advised that the likely diagnosis was chronic exertional compartment syndrome. Dr Le Leu noted that the condition is ‘most often seen in the lower limbs and most often in athletes, but it has been seen in the upper limbs and in non-athletes. The reproducibility is a characteristic, although Mr Martin’s time of recovery is longer than is typical’. Dr Le Leu also noted:

   …[the applicant] would typically spend 37 hours of typing per week with the ASD and only five hours per week of typing for approved study (some at work and some at home). I further note that his symptoms can be predictably brought on by typing for 30 minutes or more; it then takes two hours for his symptoms to recover. I further note that his bouldering activity was infrequent and of low level.

   On this basis, it is my opinion his forearm symptoms risen [sic] from employment with ASD.

9. In July 2020 the applicant was seen by Dr Stephan Praet, a sport and exercise physician, who proposed some non-invasive treatments but without a definitive diagnosis.

10. In August 2020 the applicant returned to work in a new role. It did not involve any keyboard or mouse work and consisted almost entirely of escorting contractors around buildings. When this work dried up the applicant ultimately returned to his previous role but with significant restrictions.

11. In September 2020 ASD sent the applicant to see Dr Gillespie, a consulting orthopaedic surgeon. At that time the applicant described his symptoms as ‘under control’ and his forearms as feeling ‘relatively normal’. He reported that this changes if he does a lot of keyboarding and mouse work. Typing was especially provocative. He also reported that the deep ache which he feels in his arms can take a few days to resolve.

12. Dr Gillespie was satisfied that ‘on balance Mr Martin suffers from chronic exertional compartment syndrome in his forearms’. He noted that non-operative measures to address the condition had only been partially successful. He recommended that the applicant consider a compartment decompressive procedure given the severity of his symptoms and their persistence. He noted that the problems the applicant suffers from recur predictably with the activities that have until now formed the greater part of his normal workday. Dr Gillespie described the applicant as ‘fit to perform the inherent requirements of his role. Except that he is likely to struggle with the keyboarding requirements of his current job and that therefore a change in role which has been foreshadowed in the accompanying papers would be worth a trial’.

13. In October 2020 the applicant was examined by Associate Professor McGill, a consultant rheumatologist, at Comcare’s request. At that stage the applicant was back at work. His recent work history was recorded in the following terms:

    In August 2020 he returned to work in a different role, escorting contractors in the high security environment in which he works. That role involved observing contractors with minimal physical activity by him. Since September 2020, he has mainly been learning a project management role. He uses Dragon Dictate for more than 97% of his work but there is still a very small amount of keying and mouse work. He is currently working four hours per shift, three shifts per week (Monday, Wednesday and Friday).

14. The applicant described himself as being ‘fairly well’ when he returned to work in August 2020. He experienced a slight increase in symptoms which he thought may have been caused by using the computer to complete his timesheet. He also indicated that he found his current work activities ‘aggravating to his symptoms’.

15. After examination of the applicant and a review of the applicant’s medical history and the medical literature on CEC Syndrome, Dr McGill was sceptical that the applicant suffered from CEC Syndrome.

16. He noted that the key study published on CEC Syndrome arising in the forearm from repetitive work including keyboarding (Pritchard et al. Chronic compartment syndrome, an important cause of work-related upper limb disorders. Rheumatology 2005; 44:1442-1446 (Pritchard)) listed the following matters as diagnostic:

    (a)Forearm pain of gradual onset deteriorating to a point where repetitive usage of the affected arm was becoming restricted;

    (b)This was associated with distal neurological complaints;

    (c)Other diagnoses had been excluded;

    (d)Clinical examination should elicit tenderness on local pressure in the extensor muscle compartments and offer a positive Tinnel’s sign;[1]

    (e)The measured resting pressures in the extensor muscle compartment was 6mmHg which usually doubled following gripping exercises;

    (f)Symptoms could last for up to 20 minutes.

    [1] A Tinel’s sign is a way of detecting irritated nerves. The test for it is performed by lightly tapping over the nerve to elicit a sensation of pins and needles in the distribution of the relevant nerve.

17. Dr McGill noted that the study did not suggest that the flexor forearm compartment was likely to be influenced by keyboard type activity. He could find no evidence in the literature which suggested an association between keyboard activity and flexor forearm CEC Syndrome.

18. Dr McGill noted that in a study by Lipschitz AH, Lifchez SD, entitled Measurement of compartment pressures in the hand and forearm JHS 2010; 35A 1893-1894 (the Lipschitz study), the authors indicated that ‘a pressure greater than 30mmHg “is considered by some authors to be diagnostic for compartment syndrome”.

19. Dr McGill also referred to an article summarising the existing knowledge on CEC Syndrome by Meehan and O’Brien entitled Chronic exertional compartment syndrome (UpToDate). He noted the following matters from that article:

    (a)The syndrome occurs primarily in the lower leg but has been reported in the forearm and elsewhere;

    (b)Symptoms typically resolve quickly once exercise is terminated;

    (c)CEC Syndrome involving the upper limb is rare but may occur in participants in motor cross or rowing and has been reported in weight-lifting, pitching, kayaking and swimming;

    (d)Anecdotal evidence suggests that increases in training may contribute, but such claims are susceptible to recall bias;

    (e)Patients are typically asymptomatic at rest and during activities of daily living;

    (f)Pain typically begins within several minutes of starting the inciting activity often at a specific point in training, pain steadily increases with exertion but resolves completely with rest although not immediately after stopping exercise – this feature is so characteristic of the condition that diagnosis should be reconsidered if such a correlation cannot be established;

    (g)In relation to CEC Syndrome in the forearm, the paucity of relevant clinical research and lack of consensus among clinicians about measurements for upper extremity CEC Syndrome means clinical judgment is more important when diagnosing this uncommon condition.

20. Dr McGill concluded based on the history and presentation that it was unlikely that a physical disease was playing a significant role in the applicant’s upper limb symptoms and took the view that a somatic symptom disorder was more likely to explain the symptoms than physical forearm disease.

21. Dr McGill considered that the abrupt onset (developed over hours) and the time course of improvement after ceasing activities was inconsistent with the diagnosis (as noted by the authors of UpToDate). Dr McGill went on to say that if the applicant had compartment syndrome he could not relate it to his work activities on the basis that he was unable to find any reference to flexor forearm compartment syndrome being associated with keyboard and similar activities.

22. Following the examination by Dr McGill, the applicant continued to work on restricted duties at ASD. He remained unable to type without pain. Frustration with this restriction led him to return to Dr Damiani in January of this year.

23. Dr Damiani proposed a bilateral forearm fasciotomy[2] notwithstanding the risks associated with the procedure. The procedure was performed on 25 February 2021. During the procedure Dr Damiani noted ‘tight fascia’. The applicant was reviewed post-surgery on 19 April 2021. The applicant reported no further symptoms of CEC Syndrome since the procedure including with a graduated return to work. He did however have symptoms of exertional herniation of the palmaris longus muscle with repetitive mousing.

    [2] A fasciotomy is a procedure where the fascia is cut to relieve pressure in the muscle compartment.

24. Dr Damiani was in no doubt that the applicant, prior to surgery, was suffering from CEC Syndrome secondary to repetitive work-related activity. He was satisfied that the forearm symptoms did substantially arise as a result of the applicant’s employment with ASD and the repetitive nature of the work in particular. He noted that the true nature of the aetiology of CEC Syndrome is unknown. A biopsy of the fascia revealed nothing of interest. He rejected the proposition that the applicant was suffering from a somatic disorder.

25. On 21 May 2021 Associate Professor McGill provided a further report, having been updated with Dr Damiani’s reports concerning the surgery. Dr McGill expressed the following views:

    (a)In the literature he found no report of flexor forearm compartment syndrome being attributed to, or associated with, keyboard and similar activities;

    (b)Abrupt onset (over hours) and slow improvement in symptoms after stopping keyboard activities were inconsistent with a diagnosis of CEC Syndrome;

    (c)It was too early to judge the success of the surgery, and if symptoms were persisting post-surgery in 12 months time that would suggest forearm flexor pressure was not the cause of the problem;

    (d)Keying does not cause a change in the fascia and is not an activity associated with increased muscle bulk;

    (e)Sudden pain is not consistent with a diagnosis of CEC Syndrome;

    (f)The pressure measurements were not severely abnormal and diagnosis should be influenced by history.

26. Dr McGill remained of the view that the applicant’s symptoms were not likely to have been primarily due to elevated forearm flexor compartment pressures and that the tight fascia and elevated forearm pressure measurements were not influenced by his work duties.

27. In June 2021 Dr Wilkins prepared a report noting that post-surgery there were no continuing symptoms. He concluded that the applicant previously suffered from chronic exertional compartment syndrome affecting the superficial and deep flexor compartments of both arms and that this was treated surgically. In the absence of any other credible cause Dr Wilkins view was that the applicant’s symptoms arose out of his employment with ASD. Dr Wilkins expectation was that the applicant will recover fully and resume full time work at ASD.

28. 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

29. 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

30. 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.   

31. 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.

32. 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.

33. 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

34. 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.

35. 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.   

36. In circumstances where the applicant has a condition which is prompted into symptomatology by typing activity and he was undertaking typing activity at work on a number of occasions where it did just that, I am satisfied that the aggravations he suffered were contributed to to a significant degree by that work activity. There is no other culprit which could credibly be suggested as causing the aggravations which the applicant describes.

37. It is well established that an aggravation of symptoms, notwithstanding that there is no alteration of the underlying pathology, can be sufficient to amount to an injury for the purposes of the SRC Act.[3]

    [3] See Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [634]; Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 378; Tippett v Australian Postal Corporation [1998] FCA 335 at 5 [34] (‘Tippett’); Mellor v Australian Postal Corporation & anor [2009] FCA 504 at [39] (‘Mellor’); Comcare v Reardon [2015] FCA 1166 at [31]; Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [48].

38. To determine whether the aggravation does give rise to liability it is necessary to determine whether the applicant is merely experiencing pain at work, in which case no liability arises, or whether the activities at work cause the worker to suffer pain or suffer pain more intensely. The case of Australian Postal Corporation v Bessey [2001] FCA 266 at [12] is an example in the former category. Cases such as Mellor and Tippett deal with cases which may fall into the latter.  

39. In the applicant’s case, when he types pressure builds up within his flexor muscle compartments. The unnatural pressure level is what causes the pain. The pain would not have been brought on if the applicant had not engaged in typing. In these circumstances, the typing activity which the applicant performed at work in November 2018 caused him to suffer pain. The work activity is, at the very least, the cause of the symptomatic aggravation. In those circumstances Comcare is liable to pay compensation in respect of the aggravation of the applicant’s CEC Syndrome on the basis that:

    (a)what occurred in November 2018 (and in August 2019) was an aggravation of the CEC Syndrome; and

    (b)the exclusive (or almost exclusive) cause of that aggravation was the typing undertaken at work.

40. The typing therefore contributed to the aggravation of the CEC Syndrome to a significant degree which resulted in incapacity.

41. In these circumstances it is clear that the original decision must be set aside.

42. The affirmative evidence presented by the applicant satisfies me that at the very least the applicant suffered a compensable aggravation of an ailment. Before considering whether the applicant’s work contributed to the ailment itself I will, for completeness, deal with the arguments put against the conclusions I have reached.

    Consideration of the contention that the applicant does not suffer from CEC Syndrome

1. The respondent resists the diagnosis of CEC Syndrome on the basis that there are many aspects of the syndrome which are normally present and regarded as of diagnostic significance but which are absent here. Most of the factors of diagnostic significance are identified in the UpToDate paper and referred to by Dr McGill, including:

   (a)The syndrome occurs primarily in the lower leg;

   (b)Symptoms typically resolve quickly once exercise is terminated;

   (c)CEC Syndrome involving the upper limb is rare but may occur in participants in motor cross or rowing and has been reported in weight-lifting, pitching, kayaking and swimming;

   (d)Anecdotal evidence suggests that increases in training may contribute, but such claims are susceptible to recall bias;

   (e)Patients are typically asymptomatic at rest and during activities of daily living;

   (f)Pain typically begins within several minutes of starting the inciting activity often at a specific point in training, pain steadily increases with exertion but resolves completely with rest although not immediately after stopping exercise – this feature is so characteristic of the condition that diagnosis should be reconsidered if such a correlation cannot be established;

   (g)In relation to CEC Syndrome in the forearm, the paucity of relevant clinical research and lack of consensus among clinicians about measurements for upper extremity CEC Syndrome means clinical judgment is more important when diagnosing this uncommon condition.

2. It is fair to say that the applicant’s condition does not neatly fit most of the criteria listed. The relationship between typing and the applicant suffering pain and the pain resolving is not as tight as one might expect upon reading the UpToDate article. The article certainly implicates gripping activities as the more usual cause of the syndrome developing and makes no mention of typing activities as a possible cause. The article provides no guidance about what pressure measurements will be diagnostic of the condition in the forearm and the pressure measurements for the lower limb which were considered diagnostic were significantly higher than those found within the applicant’s forearm muscle compartments.  Accordingly, if that document is treated as a definitive basis for diagnosing the condition, the applicant would not be appropriately diagnosed with the condition.

3. These issues were put to the medical witnesses who gave evidence on behalf of the applicant. The key point made by Dr Damiani in his oral evidence was that in cases of CEC Syndrome in the forearms, clinical judgment is very important because the condition is rare. None of the medical witnesses for the applicant were concerned that there was not a strict pattern of pain being prompted by typing and then dissipating soon after the activity ceased. Dr Le Leu made the point that you have to account for physiological differences between humans.

4. In relation to concerns raised that the pressure readings obtained should not have been treated as diagnostic, Dr Damiani noted that normal pressure in the forearm compartments is no more than 8mmHg. A reading of pressure above 20mmHg in a suspected case of CEC Syndrome was significant from the point of view of making a diagnosis. He made clear that if a reading had come back at 10mmHg, that would have been interesting and perhaps prompted a reconsideration of the diagnosis.

5. The literature on the issue supports Dr Damiani’s view. The UpToDate article says on page 4:

   The Pedowitz criteria used to diagnose lower extremity CECS can be applied to the upper extremities, but the paucity of relevant clinical research and lack of consensus among clinicians about measurements for upper extremity CECS makes clinical judgment even more important when diagnosing this uncommon condition.

6. The Pedowitz criteria referred to requires a pre-exercise pressure of greater than 15mmHg in the lower limb compartment and a one minute post-exercise pressure of greater than 30mmHg.

7. However, the Pedowitz criteria are directed at the lower limb. In the upper limb, the more relevant paper is Pritchard. In that study, upper limb pressure in normal limbs was measured one minute post-exercise and a mean pressure of around 5mmHg was the result. One standard deviation above the mean for normal upper limb pressure was 7mmHg. In study participants with clinical signs of CEC Syndrome however the readings were dramatically different. The mean reading one minute post exercise for participants showing signs of CEC Syndrome was 16 mmHg. One standard deviation above the mean was 22mmHg.

8. The Pritchard study reports that patients in this second cohort who underwent surgery reported rapid improvement.

9. This study strongly supports the view taken by Dr Howse that in forearm CEC Syndrome, measured pressures above 20mmHg are diagnostic. The study also makes clear that repetitive work including keyboard work can cause CEC Syndrome. In light of this study it is no surprise that the applicant reports symptomatic relief from the surgery. 

10. The other major criticism made by the respondent of the CEC diagnosis, and its relationship to the applicant’s work, was that the increased pressure was found in the flexor muscle compartments not in the extensor compartments as was the case for participants in the Pritchard study. This concern did not trouble the medical witnesses called by the applicant. Dr Damiani accepted that he was not aware of any study which related keyboarding to CEC Syndrome where the keyboarding affected the flexor compartments. However, he did not accept that there was any anatomical reason for concluding that it was not possible for typing to increase pressure in the flexor compartments. He accepted that the applicant was an unusual case, so much so that he may justify a write-up, but that did not cause Dr Damiani to question his diagnosis or change his view about the activity which caused the applicant pain.

11. In these circumstances, I am satisfied that the criticisms of the diagnosis of CEC Syndrome are insufficient to call into question the clear and confident diagnoses of multiple experts in the field whose clinical judgment is fully supported by the objective results obtained when the applicant’s forearm compartment pressure was measured.

12. I should also add that I reject the criticisms that were made of Dr Howse’s testing and conclusions. On the evidence before me he took measurements on the applicant roughly one-minute post-exercise. Those measurements were above 20mmHg. A diagnosis of CEC Syndrome based on such a result was consistent with the Pritchard study.

    Significantly contributed to by employment

13. As discussed above, I am satisfied that the symptomatic aggravations which the applicant suffered while typing at work do meet the requirement of being an aggravation of an ailment contributed to to a significant degree by the applicant’s employment. I am satisfied that the typing undertaken at work in November 2018 and August 2019 was the activity which prompted the rise in the pressure in the applicant’s muscle compartments and, on that basis, significantly contributed to the symptomatic aggravation of the condition. As a consequence, compensation is payable in relation to the incapacity caused by the aggravations and the medical treatment obtained in relation to those aggravations.

14. The more difficult question is whether the condition itself was significantly contributed to by the applicant’s more general typing activity during his employment with ASD.

15. On balance I am satisfied that it was.

16. Dr Le Leu notes that an association between CEC Syndrome and repetitive work has been identified in the literature:

    The results show that CCS is a common and disabling forearm complaint associated with prolonged repetitive work.

17. The applicant’s work fits into that category.

18. Although a number of alternative activities were identified as potentially causative, including gym work and bouldering, these activities were not associated with the onset of the applicant’s symptoms. Understandably they have been discounted by the doctors who have examined the applicant as causative.

19. The activity which most prominently brought on symptoms in the applicant’s case was the use of the keyboard and the symptoms emerged for the first time in a context where the applicant had been undertaking extensive keyboard work for a prolonged period of time.

20. 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

21. 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.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan

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

Associate

Dated: 23 July 2021

Date of hearing:	5-7 July 2021
Solicitors for the Applicant:	Rachel Bird & Co
Counsel for the Applicant:	Mr Karl Pattenden
Solicitors for the Respondent:	Australian Government Solicitors
Counsel for the Respondent:	Mr Justin Davidson