Mates and Comcare (Compensation)

[2019] AATA 1135

Mates and Comcare (Compensation) [2019] AATA 1135 (6 June 2019)

Division:General Division

File Number:           2016/6983

Re: Lois Mates

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member R West

Date:6 June 2019

Place:Melbourne

1. The Tribunal affirms the reviewable decision of the Respondent dated 9 November 2016 to deny liability to pay compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 in relation to the Applicant’s claimed condition.

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

   Member

   Catchwords

   WORKERS COMPENSATION - asymptomatic right-sided lateral epicondylitis – condition became symptomatic - no aggravation due to workplace incident – no liability under s.14 – decision under review affirmed

   Legislation

   Safety, Rehabilitation and Compensation Act 1988
   Administrative Appeals Tribunal Act 1975

   Cases

   Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593

   Comcare v Reardon (2015) FCA 1166

   REASONS FOR DECISION

   Member R West

   6 June 2019

   Background

2. The Applicant commenced employment with the Department of Human Services (Department) on 10 October 2005 as a service officer on a permanent part-time basis.  She commenced full-time employment approximately three years later.

3. On 16 February 2015, the Applicant was employed by the Department as an APS 3 Service Officer at the Waverley Gardens Medicare branch.  Her duties comprised general office administration tasks, including inputting data into a computer system and photocopying, and over the counter customer service, including processing customer enquiries requiring typing and the use of a mouse.

4. On 16 February 2015, the Applicant claims to have suffered an injury causing pain in her right forearm and elbow when she reached out to receive documents from a customer while performing her customer service duties (Incident).

5. On 17 February 2015 the Applicant lodged an incident report in relation to the Incident.[1]

   [1] T10.2.

6. The Applicant consulted her general practitioner, Dr Skinner, on 17 February 2015 and he diagnosed that the Applicant had sustained an extensor musculotendinous strain/tear in the right forearm.[2]  The Applicant continued to attend for work.

   [2] T20 at p.120.

7. On 23 February 2015, the Applicant again consulted Dr Skinner who noted that the Applicant had complained that her right elbow was still sore.  He noted tenderness on the lateral epicondyle and diagnosed the Applicant as suffering from acute musculotendinous strain/tear right elbow forearm extensor origin.  He recommended that the Applicant wear a brace, avoid heavy lifting/forceful use of right arm and that she have 10 minute breaks from typing each hour.[3]

   [3] T6.

8. Between 23 February 2015 and 14 October 2015 the Applicant underwent laser acupuncture treatment for her injury.

9. In June 2015 the Applicant transferred to the Springvale Medicare and Centrelink Service Centre where she has continued to work as an APS 3 Service Officer, subject to restrictions.

10. On 14 June 2016, the Applicant lodged a workers compensation claim[4] in relation to tendonosis and tear of the right extensor with a date of injury of 16 February 2015 (Claim).

    [4] T9.

11. A delegate of the Respondent rejected the Claim by determination dated 17 August 2016[5] (Determination).  The Applicant requested a reconsideration of the Determination on

    
    

    12 October 2016.  On 9 November 2016 the authorised delegate of the Respondent accepted that the Applicant was suffering from an ailment, or an aggravation of an ailment, namely right sided lateral epicondylitis but found that the condition was not contributed to, to a significant degree, by her employment with the Department.  The authorised delegate affirmed the Determination[6] (Reviewable Decision).

    [5] T24.

    [6] T29.

12. On 23 December 2016, the Applicant applied to this Tribunal for review of the Reviewable Decision.[7]

    [7] T1.

    Matters for Review

13. The matter for review by the Tribunal, pursuant to s.25 of the Administrative Appeals Tribunal Act 1975 (AAT Act), is the reviewable decision of the Respondent dated

    
    

    9 November 2016[8] affirming the Respondent’s determination of 17 August 2016[9] to deny liability to pay compensation under s.14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to the Applicant’s claimed condition of right sided lateral epicondylitis.

    [8] T29.

    [9] T24.

    Evidence

1. In conducting the review the Tribunal has had regard to:

   a)

   each of the documents produced to the Tribunal by the Respondent pursuant to

   
   

   s.37 and s.38AA of the AAT Act (the T-Documents),

   b)

   the oral evidence of the Applicant and the Applicant’s witness statement dated

   
   

   17 April 2018 – Exhibit A1; and

   c)the oral evidence of Dr Simone Ryan and Dr Sean Low.

   Analysis

2. Under s.14 of the SRC Act, the Respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

3. Under s.5A of the SRC Act an ‘injury’ is relevantly defined as:

   (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

4. A ‘disease’ is further defined as:

   (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.

5. In turn an ‘ailment’ is defined as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

6. The definition of injury in s.5A of the SRC Act requires the Tribunal to answer two questions in the present case:

   a)Does the Applicant suffer from an ailment or aggravation of an ailment?

   b)If so, was the ailment or aggravation of the ailment contributed to, to a significant degree, by the Applicant’s employment?

7. The Applicant and the Respondent each contend that the medical evidence establishes that the Applicant was suffering from asymptomatic right-sided lateral epicondylitis which became symptomatic in or around February 2015.  Notwithstanding the acceptance of this issue by the parties the Tribunal is required to determine the answer to the first question for itself based on the evidence.

8. Dr Low, in his report of 8 August 2016,[10] diagnosed the Applicant as suffering from right-sided lateral epicondylitis which he attributed to age-related changes and constitutional factors such as increased body mass. Dr Ryan, in her report of 8 August 2017, also gave a diagnosis of chronic right-sided lateral epicondylitis developing into chronic pain syndrome.  She opined that the Applicant probably had some chronic underlying asymptomatic degenerative changes of the right elbow region and that the Incident in February 2015 rendered her symptomatic. 

   [10] T23.1 at p.144.

9. The evidence does not point to there being any work-related contribution to the development of the underlying right-sided lateral epicondylitis, other than possibly the Incident.  

10. Dr Low attributed the development of the underlying condition as being due to age related degeneration and constitutional risk factors, including increased body mass index.  He noted that the Applicant gave no history of performing repetitive forceful movements, working with vibrating equipment or working in difficult climates.  Having taken an accurate history of the Applicant’s duties Dr Low concluded that [i]n terms of work-relatedness I do not consider that her employment is a material contributing cause.  In his oral evidence he opined that typing is not shown to cause aggravation of epicondylitis.  He noted that the Applicant had mixed duties and was not typing repetitively in any event.

11. Dr Ryan noted Dr Low’s opinion in her report of 8 August 2017 and she stated that:

    Dr Sean Low has indicated that the work in and of itself (that of being administered sedentary-type work for the Department) there is no significant evidence as to causing a lateral epicondylitis generally.  I agree with this in general terms.

12. While Dr Skinner disagreed with Dr Low that constitutional factors such as increased body mass index play a role in the development of extensor epicondylitis/tendinosis he noted in his report of 29 September 2016[11] that:

    I agree with [Dr Low] to the extent that office and clerical work has not been, as far as the current body of research is concerned, associated with the causation of extensor epicondylitis/tendinosis.  Review of the scientific literature indicates that only occupations involving forceful and repetitive flexion and extension of the elbow have been definitely associated with this condition.

    [11] T27.2 at p.170.

13. Thus the consensus of the medical witnesses was that the aggravation of the Applicant’s underlying epicondylitis was not due to the general nature of the Applicant’s work prior to February 2015.

14. On the basis of this medical evidence, the Tribunal finds that:

    a.prior to 16 February 2015 the Applicant had asymptomatic right-sided lateral epicondylitis which was not contributed to, to a significant degree, by the Applicant’s employment with the Department; and

    b.on and from 16 February 2015, the Applicant suffered from symptoms of the condition of right-sided lateral epicondylitis.

15. The Tribunal is further satisfied that the condition of right-sided lateral epicondylitis satisfies the statutory definition of an ailment, being a physical ailment, disorder, defect or morbid condition.

16. As to the further question of whether the Incident aggravated the pre-existing right-sided lateral epicondylitis, it is to be noted that, for the purpose of the SRC Act, the term ‘aggravation’ of an ailment or injury connotes that an existing disease or injury has been made worse by the Applicant’s employment, not that it has simply become worse.[12]  In the Applicant’s case, it is clear that the right-sided lateral epicondylitis condition became worse after the Incident.  Prior to the Incident the Applicant had no pain or other disability, but afterwards she experienced ongoing pain.  The pertinent question is therefore whether the Incident made the symptoms worse or whether, as Dr Low opined, they were merely contemporaneous in nature.[13]

    [12] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593 per Windeyer J. – see also Comcare v Reardon (2015) FCA 1166 per Mortimer J. at [35].

    [13] T23.1 at p.145.

17. The Applicant gave evidence that she had not suffered the symptoms of pain in her right elbow or forearm prior to the Incident.[14]  Dr Skinner noted the symptoms of pain in right extensor forearm area when he examined the Applicant on 17 February 2015.[15]  The painful symptoms of the condition have been ongoing since February 2015.

    [14] Exhibit A1 at [6].

    [15] T20 at p.120.

18. The description of the Incident given by the Applicant, that she experienced a burning sensation in her right forearm when she reached across her desk and under a security screen to grasp documents, does not readily suggest that the Incident was the cause of the condition[16], and this is not the opinion of either Dr Low or Dr Ryan. 

    [16] The evidence of Dr Skinner, consistent with that of Dr Low and Dr Ryan, was that the onset of lateral epicondylitis is usually associated with forceful and repetitive flexion and extension of the elbow.

19. Dr Ryan’s opinion was that:

    ...on that day in February 2015 [the Applicant] undertook a peculiar manoeuvre of the right upper limb and this in and of itself, on the balance of probabilities, probably was the mechanism of injury – initially, exacerbating some underlying formally (sic) asymptomatic chronic degenerative tears.

20. Dr Low’s contrary opinion as stated in his report of 8 August 2016[17] was:

    In terms of the specific subject injury, that being of reaching forward to retrieve some documents, I note that the documents in question were not heavy in nature.  Furthermore consequent radiological investigation did not show any evidence of any acute tear.  I consider that this particular manoeuvre could have occurred through the course of activities of daily living and I consider the relationship with work as contemporaneous in nature.  That is to say, [the Applicant] would have developed her symptoms regardless of workplace activities.

    [17] T23.1 at p.145.

21. In his oral evidence Dr Low disagreed that the Incident could have aggravated the asymptomatic condition and rendered it symptomatic.  He pointed to the fact that it was a single incident which did not involve lifting a heavy object.  He stated that epicondylitis typically involves repeated forceful activities where the heavier the object, the greater the risk.  He also pointed to the absence of tears in the ultrasound results as supporting his opinion.

22. Dr Low’s opinion is based in part on the radiological report of Dr Edward Roberts who conducted an ultrasound examination of the Applicant’s right elbow on 25 March 2015, some six weeks or so after the Incident.  Dr Roberts reported:[18]

    While the common extensor origin is mildy tendinopathic there is no discrete tear identified.  Remaining structures around the right elbow are unremarkable with no elbow joint effusion detected.

    [18] T20 at p.123

23. Dr Ryan’s report did not refer to the Dr Roberts’ report of 25 March 2015.  Instead she referred to the results of an ultrasound conducted by Dr Ivor Berman on 22 October 2015 which she said demonstrated common extensor origin tendinosis with small deep portion partial-thickness tears and mild neovascularity.    

24. Dr Skinner was critical of Dr Low for ignoring the findings of Dr Berman.[19]  The Tribunal does not accept that this criticism is valid.  Dr Low was concerned with evidence relevant to the effect of the Incident in February 2015.  The absence of tears in the ultrasound conducted on 25 March 2015 tends to confirm Dr Low’s assessment that the Incident did not cause or exacerbate the underlying condition but was itself just symptomatic of the condition.  Dr Berman’s results relate to the Applicant’s condition in October 2015, some eight months later. Dr Berman noted in his report that recent ultrasound demonstrated common extensor origin tendinosis but no tear.  This makes it very likely that the tearing observed in October 2015 occurred after the time of Dr Roberts’ report in March and has little bearing on the reasons why the Applicant’s condition became symptomatic in February 2015.

    [19] T27.2 at p.171

25. Dr Ryan placed a significant emphasis in her assessment on the mechanism of injury as reported to her by the Applicant. She stated that it was this manoeuvre in and of itself which rendered her symptomatic.  She described what happened as an awkward ergonomic posture. Her report of 24 July 2017 sets out her understanding of the Incident:

    It is well recorded that on 16 February 2015, [the Applicant] reached down and over the high perspex partitions of a desk down to a “little old lady”; a reach from an elevated seated position which was otherwise difficult to access.

26. The Applicant gave evidence of the Incident and the ‘mechanism of injury’.  She said that she was seated at a desk and that at the side of the desk opposite to her, between her and the customer, there was an elevated partition extending vertically to shoulder height.  Above the top of the partition was a perspex security screen.  Documents were passed to her by customers through a gap between the security screen and the top of the partition.  On the day of the Incident she stated that an elderly lady, who was very short, could not reach the top of the partition to hand her some documents.  She said that she reached across her desk approximately two feet wide and extended her right arm through the gap between the partition and the perspex screen to take the documents from the customer.  It was this action which produced pain in her fingers which shot up her arm to the elbow.

27. When the contradiction between the Applicant’s evidence and Dr Ryan’s report was put to Dr Ryan she said it did not change her view.  The Tribunal notes that, having emphasised the role of the Applicant’s awkward ergonomic posture in concluding that it was the cause of an aggravation of the underlying condition, Dr Ryan saw no need to change her view when it was pointed out to her that her understanding of the ‘mechanism of injury’ was incorrect to a significant degree.  There is clearly a very different series of movements required to reach over the Perspex security screen compared to reaching across the desk and extending an arm through the gap below the security screen. Dr Ryan defended her opinion by asserting that she was familiar with the Department and its co-located offices and the work the Applicant performed, having been engaged by the Department as a consultant in the past.  The Tribunal does not regard this evidence to be materially relevant to the specific incident involved in this case.  Dr Ryan had no direct knowledge of the Applicant’s actual workplace.

28. Dr Ryan’s conclusion that the Incident had exacerbat[ed] some underlying formally (sic) asymptomatic chronic degenerative tears was based on the report of Dr Berman who conducted an ultrasound in October 2015, some eight months after the Incident. 
    Dr Ryan conceded that she did not have regard to the report of Dr Roberts which showed no evidence of tears when he conducted an ultrasound in March 2015.

29. In giving her evidence Dr Ryan was defensive and reluctant to make reasonable concessions on some points.  She conceded that she did not ask the Applicant about her activities outside work and that her diagnosis was based on the Applicant’s condition when she saw her in 2017, not at the time of the Incident in 2015.  Dr Ryan also conceded that the onset of lateral epicondylitis is usually associated with repetitive actions and that it was possible, although unlikely, that something other than the Incident may have caused the degenerative condition to become symptomatic.

30. The Tribunal prefers the evidence of Dr Low.  His assessment was not based on a significant misunderstanding of the ‘mechanism of injury’ as Dr Ryan’s was.  His opinion had regard to the contemporaneous ultrasound reports which indicated an absence of tears after the Incident whereas Dr Ryan’s assessment related to the Applicant’s condition in 2017.

31. Having considered all of the evidence the Tribunal finds, on the balance of probabilities that:

    a.prior to 16 February 2015 the Applicant had asymptomatic right-sided lateral epicondylitis which was not contributed to, to a significant degree, by the Applicant’s employment with the Department;

    b.on and from 16 February 2015, the Applicant suffered from symptoms of the condition of right-sided lateral epicondylitis;

    c.on 16 February 2015 the Applicant reached across her desk and extended her right arm through the gap between a Perspex security screen and the top of the elevated partition between her and the customer to take documents from the customer;

    d.as a result of this action the Applicant experienced pain in her right lower arm extending from the fingers to the elbow;

    e.the pain was likely the first occasion that the Applicant had experienced the manifestation of her underlying degenerative condition; and

    f.the incident on 16 February 2015 did not cause the Applicant’s underlying degenerative condition to worsen.

    Conclusion

32. The Applicant suffers from an ailment, namely right-sided lateral epicondylitis but the ailment was not:

    a.aggravated by the incident which occurred on 16 February 2015; or

    b.contributed to, to a significant degree, by the Applicant’s employment by the Department.

33. Accordingly, the Applicant did not suffer an ‘injury’ as defined in s.5A of the SRC Act on 16 February 2015 and she is therefore not entitled to compensation pursuant to s.14.

    Decision

34. The Tribunal affirms the reviewable decision of the Respondent dated 9 November 2016 to deny liability to pay compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 in relation to the Applicant’s claimed condition of right sided lateral epicondylitis.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member West.

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

Associate

Dated: 6 June  2019

Date(s) of hearing:

1 and 2 May 2019

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Mark Seymour

Slater & Gordon Lawyers

Advocate for the Respondent:

Ms Sarah Wright