McCracken and Comcare (Compensation)
[2021] AATA 4819
•24 December 2021
McCracken and Comcare (Compensation) [2021] AATA 4819 (24 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2895
Re:Nasreen McCracken
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:24 December 2021
Place:Canberra
The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act1975.
.
..............[sgd].........................................................
Senior Member Linda Kirk
Catchwords
WORKERS’ COMPENSATION – whether the applicant suffered an ailment or an aggravation of an injury for the purposes of section 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 resulting in disease as defined by section 5B(1)(b) of the Act – whether Applicant’s employment contributed, to a significant degree, the aggravation of the ailment such that she has a ‘disease’ under s 5B(1) of the SRC Act – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)
Cases
Campion and Comcare [2021] AATA 4310
Cavanagh and Comcare [2021] AATA 499
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Comcare v Stefaniak [2020] FCA 560
Commonwealth and Snell [2019] 269 FCR 18
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 35 ALR 369
De Tarle and Comcare [2021] AATA 94
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fletcher and Comcare [2015] AATA 430
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Knox and Comcare [2019] AATA 2196
Martin and Comcare [2021] AATA 2455
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Millar and Comcare [2019] AATA 4973
Portors v Comcare [2018] FCA 914
Priestly and Comcare [2019] AATA 5456
Reardon and Comcare [2015] AATA 360
Rutledge and Comcare [2011] AATA 865
Stefaniak and Comcare [2019] AATA 1866
Su v Comcare [2011] AATA 934
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Whitlock and Comcare [2020] AATA 1353
Williamson and Comcare [2019] AATA 4774
Wood and Comcare [2019] AATA 981
Wuth and Comcare [2020] AATA 3625REASONS FOR DECISION
Senior Member Linda Kirk
24 December 2021
APPLICATION FOR REVIEW
Nasreen McCracken (‘the Applicant’) was born on 16 December 1964. She commenced employment with the Department of Defence (‘the Department’) in July 1986.[1] She is currently employed by the Department as an APS 1 mail/triage officer.[2]
[1] Exhibit A1, [1].
[2] Exhibit R1, T17, 39.
On 4 July 2011 the Applicant lodged a workers’ compensation claim for bilateral carpal tunnel syndrome which she reported to have first noticed on 3 November 2010 and for which she first sought treatment on 26 November 2010.[3] On 25 August 2011, the Respondent accepted the Applicant’s claim,[4] and the case was closed in October 2011.[5]
[3] Exhibit R2, T6, 2-27; T14, 53-58.
[4] Ibid, T13, 48-49.
[5] Ibid, T15, 59.
On 15 October 2019, the Applicant lodged a workers’ compensation claim in which she reported that she began noticing tingling in her fingers on 17 May 2019 for which she sought treatment on 22 May 2019.[6]
[6] Exhibit R1, T12, 20-22.
By determination dated 11 December 2019, Comcare declined liability for ‘bilateral carpal tunnel syndrome’ pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’). The delegate considered that the Applicant’s employment was not a significant contributing factor to her condition.[7]
[7] Ibid, T19, 54-55.
On 17 December 2019, the Applicant requested a reconsideration of the determination dated 11 December 2019.[8]
[8] Exhibit R2, T26, 81.
On 7 April 2020, Comcare affirmed the initial determination dated 11 December 2019 that denied liability for ‘bilateral carpal tunnel syndrome’[9] (‘the Reviewable Decision’).
[9] Exhibit R1, T26, 68-72.
On 14 May 2020, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[10]
[10] Ibid, T1, 1-2.
The review application was heard by the Tribunal on 24 and 25 June 2021. The Applicant attended the hearing by video-conference. The following witnesses gave evidence at the hearing:
·the Applicant; and
·Associate Professor Neil McGill.
The following documents were before the Tribunal:
·Applicant's Statement undated (‘Exhibit A1’);
·Email of the Applicant to the Administrative Appeals Tribunal dated 28 March 2021 (‘Exhibit A2’);
·Medical Support Plan undated (‘Exhibit A3’);
·Neurologist Receipt dated 11 January 2021 (‘Exhibit A4’);
·Email of the Applicant to the Administrative Appeals Tribunal dated 23 June 2021 (‘Exhibit A5’);
·Medical Report of Dr Yash Gawarikar dated 11 January 2021 (‘Exhibit A6’);
·Respondent’s s 37 documents (T1-T27) filed on 12 June 2020 (‘Exhibit R1’);
·Supplementary T documents (T1-T33) filed on 14 July 2020 (‘Exhibit R2’);
·Documents produced under Summons filed on 23 June 2021 (‘Exhibit R3’);
·Medical Report of Associate Professor Neil McGill dated 11 November 2020 (‘Exhibit R4’).
LEGISLATIVE FRAMEWORK
Sections 14 of the SRC Act provides for the payment by Comcare (‘the Respondent’) of compensation as follows:
14 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.
…
‘Injury’ is defined in s 5A of the SRC Act:
(1)…
(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;
…
A ‘disease’ is defined in section 5B of the SRC Act to mean, so far as this case is concerned:
(1)…
(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 list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
Sub-section 5B(3) of the Act provides that ‘significant degree’ means ‘a degree that is substantially more than material.’
An ‘ailment’ is defined in s 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ is further defined in s 4 to include ‘acceleration or recurrence’.
ISSUES FOR DETERMINATION
The issues before the Tribunal are as follows:
1)Did the Applicant suffer an ailment?
2)Was the ailment contributed to, to a significant degree, by her employment with the Department?
3)Did the Applicant suffer an aggravation of a non-work-related ailment which was contributed to, to a significant degree, by her employment?
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s employment
The Applicant commenced employment as a Data Processing Officer with the Department in July 1986.[11] Her duties involved ‘repetitive typing all day’ with two breaks of 30 minutes duration. She worked in this role for one year and then took maternity leave.[12]
[11] Exhibit A1, [1]-[2].
[12] Ibid, [2].
When the Applicant returned to work in 1988, she worked in another area which did not involve data entry.[13] She took maternity leave again and returned to work in 1990 and worked in a role that did not require data entry.[14] The Applicant took leave from work for four years when she accompanied her spouse overseas.[15]
[13] Exhibit A2, 1.
[14] Ibid.
[15] Ibid.
When the Applicant returned to work in 1996, she moved to a different role which did not involve data entry.[16] After returning to work following maternity leave in 2005, the Applicant started doing data entry work. She was raising files and sending them to Archives. The work was repetitive.[17]
[16] Ibid.
[17] Ibid.
In 2009, the Applicant moved to Brindabella Park for six weeks. She was required to scan files and move them onto Objective. This involved a lot of keyboard use and was repetitive.[18]
[18] Ibid.
When she returned to Campbell Park, she was asked to create files for Defence Force Recruitment (DFR). She was told that her work was being monitored and she ‘felt pressured and very stressed.’[19] Her work duties at that time involved a lot of repetitive keying with both hands and not much mouse work.
[19] Ibid.
In 2013, the Applicant moved to work at Brindabella Park. In 2015, she moved to Royal Military College (RMC) where she was required to do repetitive typing for the Pass Office. She scanned and dragged all the documents into Objective. There was a back log of four months which she completed. She was doing repetitive frequent keying using both hands. She continued those duties, initially without experiencing symptoms.[20]
[20] Exhibit R4, 2.
In 2016, after nine months at RMC, she moved to Campbell Park where she was part of the Pass Office team. One of her duties was to scan documents and drag them onto Objective.
First claim for bilateral carpal tunnel syndrome
In late 2010 the Applicant developed tingling in the fingers of both hands. On 1 December 2010, the Applicant attended Kambah Medical Centre and saw Dr Anil Goel. He referred her to Dr Andrew Hughes for nerve conduction studies with the history of tingling and paraesthesia in the right hand.[21]
[21] Ibid, 3.
On 20 December 2010 upper limb nerve conduction studies of the Applicant were reported to show evidence of bilateral median nerve lesions at the level of the wrist, moderate to severe in severity on the right and moderate on the left.[22]
[22] Ibid, 3.
On 3 May 2011 the Applicant saw Dr Stephen Halcrow, neurosurgeon. In his letter to Dr Goel dated 6 May 2011, Dr Halcrow reported that the Applicant had ‘symptomatic bilateral carpal tunnel syndrome’[23] with the right hand being worse than he left. He recommended she undergo a trial of nocturnal wrist splints in the first instance and that she be referred to a physiotherapist to be fitted with these. He stated that if these are ineffective or her symptoms become progressively worse, she should undergo carpal tunnel release surgery.
[23] Respondent’s Bundle, 490.
On 14 June 2011, an incident report stated the Applicant had carpal tunnel syndrome as a result of performing clerical duties.[24]
[24] Exhibit R1, T3, 4-9.
On 4 July 2011 the Applicant lodged a workers’ compensation claim for ‘bilateral carpal tunnel syndrome’ which she reported to have first noticed on 3 November 2010 and for which she first sought treatment on 26 November 2010.[25]
[25] Exhibit R2, T6, 14.
In a report dated 24 August 2011, Dr Goel reported that the Applicant had had symptoms of carpal tunnel syndrome from December 2010, and this diagnosis had been confirmed by nerve conduction studies that had been done in that same month. Dr Goel also stated that the Applicant did not have any pre-existing conditions relating to carpal tunnel syndrome. In relation to contributory factors, Dr Goel wrote:
Was assessed by ergonomics department on 24 June 2011 and her desk/computer was at an inappropriate height. This could have been a contributory factor.[26]
[26] Exhibit R2, T12, 44-45.
On 25 August 2011, the Respondent accepted the Applicant’s claim.[27] The delegate was satisfied on the basis of the report by Dr Goel that the Applicant suffered from an ‘ailment’, namely, bilateral carpal tunnel syndrome. She was further satisfied on the balance of probabilities, that the Applicant’s claimed condition had been contributed to a significant degree, by her employment with the Department, ‘specifically the ergonomics of [her] workstation and the repetitive nature of creating Defence Force Recruitment files.’
[27] Exhibit R2, T13, 46-52.
On 26 September 2011 the Applicant saw Dr Alan Biribo, Neurosurgical Registrar, at Dr Halcrow’s rooms. In his letter to Dr Goel dated 30 September 2011, Dr Biribo reported that the Applicant has been using night splints and attending physiotherapy clinics.[28] She no longer had the degree of numbness and weakness in her hands that she had previously. Her symptoms were much better, and she had returned to work. This was in part due to ‘workplace modifications’ but she also reported that that physiotherapy and splinting had been very helpful to her.[29]
[28] Respondent’s Bundle, 478.
[29] Ibid; Exhibit R4, 2; Exhibit A2, 1; Exhibit A1, [5].
The Applicant’s claim was closed in October 2011, following the completion of a return-to-work plan. It was agreed between the Applicant, the rehabilitation provider, the employer and the case manager that the Applicant would no longer be required to perform the repetitive task associated with medical files.[30]
[30] Exhibit R2, T15, 59.
Second claim for bilateral carpal tunnel syndrome – October 2019
In June 2017 the Applicant redeveloped tingling and pain in both hands. The symptoms were worse at night. They troubled her when she was driving her car such that she had difficulty holding the steering wheel. She was unable to stir when cooking but otherwise continued her cooking activities.
On 28 May 2019, the Applicant saw her general practitioner, Dr Rupert Lui and reported tingling in her fingers for the past three weeks. He referred her to Dr Ram Malhotra, neurologist.[31]
[31] Respondent’s Bundle, 145.
On 4 June 2019, the Applicant saw Dr Malhotra, who reported that the nerve conduction study he performed revealed ‘severe, bilateral carpal tunnel syndrome.’[32] He referred the Applicant to Dr Chris Roberts for surgery. When the Applicant was diagnosed with carpal tunnel syndrome, she ‘didn’t expect it’ and ‘was very surprised.’[33]
[32] Exhibit R1, T4, 10.
[33] Exhibit A1, [7].
On 24 June 2019, an Ergonomic Assessment Report stated the Applicant spent up to six and a half hours per day managing correspondence using the computer terminal and keyboard. She performed up to one and a half hours per day of data entry. The Applicant also filed and reviewed documents for up to two hours a day.[34]
[34] Exhibit R1, T17.2, 44.
On 4 July 2019 the Applicant saw Dr Chris Roberts, orthopaedic surgeon. In his letter to Dr Malhotra reporting on that consultation,[35] Dr Roberts reported that he had arranged for the Applicant to undergo carpal tunnel release surgery.[36]
[35] Respondent’s Bundle, 1063.
[36] Ibid, 1059-1060.
The Applicant had surgery within one week of seeing Dr Roberts as she ‘was in too much pain’. He told her that if she did not have the surgery, she ‘will lose feelings in [her] hands.’[37] On 12 July 2019, the Applicant underwent bilateral carpal tunnel decompression surgery and was off work for two weeks. Her hand symptoms resolved completely, and she resumed her full-time normal duties including keying. The only modification was that she avoided lifting heavy boxes.[38]
[37] Exhibit A1, [8].
[38] Exhibit R4, 2.
The Applicant saw Dr Roberts again on 2 September 2019 for a follow up consultation. In his report, Dr Roberts reported that the symptoms in the Applicant’s right hand were completely recovered and that the symptoms in her left were much improved.[39]
[39] Respondent’s Bundle,1058.
On 2 September 2019, Dr Malhotra diagnosed the Applicant with severe, bilateral carpal tunnel syndrome.[40] He reported that ‘no definite cause was found for the flare (sic) of her carpal tunnel syndrome symptoms.’ He stated that ‘the role of repetitive hand/wrist use and workplace factors in the development of CTS is controversial’ and listed a number of underlying risk factors that may be relevant to its onset including age, gender and weight.[41]
[40] Exhibit R1, T11, 18-19.
[41] Ibid.
On 15 October 2019, the Applicant lodged a workers’ compensation claim in which she reported that she began noticing tingling in her fingers on 17 May 2019 for which she sought treatment on 22 May 2019.[42]
[42] Exhibit R1, T12, 20-27.
On 18 October 2019, the Applicant lodged a claim for time off work from 10 July 2019 to 12 July 2019 and 15 July 2019 to 23 July 2019.[43]
[43] Exhibit A1, T13, 28
On 24 October 2019, Dr Malhotra provided a workers’ compensation medical certificate in which he stated that the Applicant had started repetitive data entry again in December 2015. She had an aggravation of a pre-existing condition; carpal tunnel syndrome in both hands. The Applicant had undergone surgery with improvement and was fit for work.[44]
Expert medical evidence
[44] Exhibit A1, T14, 29-30
Associate Professor Neil McGill, Consultant Rheumatologist
On 11 November 2020, Associate Professor McGill saw the Applicant at the request of the Respondent and produced a written report of the same date.[45] He reported the Applicant had concurrent bilateral carpal tunnel decompression performed on 4 July 2019 and was off work for two weeks. He noted that her hand symptoms resolved completely, and she has had no symptoms since.[46]
[45] Exhibit R4, 2.
[46] Ibid.
In his opinion, the only condition that substantially contributed to the Applicant’s previous bilateral hand symptoms was bilateral carpal tunnel syndrome.[47] He referred to three academic studies and stated ‘all of the published literature supports the conclusion that keyboard/computer use does not increase the risk of carpal tunnel syndrome.’[48] In his view, the development of the Applicant’s bilateral carpal tunnel syndrome would have occurred at the same time ‘regardless of the work duties she was performing’ and ‘her work did not make a significant contribution.’ He considered that the surgery for bilateral carpal tunnel decompression was appropriate and successful, and that this ‘requirement for treatment was unrelated to her work.’[49]
[47] Ibid, 4.
[48] Ibid.
[49] Ibid.
During his oral evidence at the hearing, Associate Professor McGill told the Tribunal that the relationship between keyboard work and carpal tunnel syndrome had been repeatedly studied and there is ‘very good quality research that has addressed that question’.
These studies have consistently found ‘that keyboard work does not increase the prevalence, severity or incidence of carpal tunnel syndrome.’[50]
[50] Transcript of proceedings, 24 June 2021, 4.
Associate Professor McGill told the Tribunal that he found it ‘disappointing’ that Dr Gawarikar had not referred in his report to the academic literature in relation to the relationship between keyboard work and carpal tunnel syndrome. In his view, to determine that the condition got worse because of something a person was doing when there is not a control group is ‘non-scientific’. This is the reason why carefully conducted studies are done and why doctors rely heavily on the results of these studies.[51]
[51] Transcript of proceedings, 24 June 2021, 8.
Dr Yash Gawarikar, Consultant Neurologist
On 11 January 2021, Dr Gawarikar saw the Applicant on referral from her general practitioner. In a letter to the Applicant’s general practitioner, he reported that the Applicant originally had symptoms and was diagnosed with carpal tunnel syndrome in 2010, and after seeing a physiotherapist her symptoms resolved.[52] The Applicant’s symptoms were attributable to ‘excessive computer and keyboard work’.[53] She resumed working long hours in 2015 and her symptoms flared up again in 2019. In his opinion, the Applicant’s carpal tunnel syndrome was ‘due to repetitive movements due to excessive keyboard use’.[54] The nerve conduction study he conducted during his consultation with the Applicant on 11 January 2021 showed evidence of bilateral carpal tunnel syndrome of moderate severity on the right hand and mild severity on the left hand. He recommended that the Applicant either not do keyboard work at all or work very limited hours, and that she undergo conservative treatment such as wearing a wrist splint or if necessary having an ultrasound guided steroid injection at the wrist.[55]
SUBMISSIONS
[52] Exhibit A6, 1.
[53] Ibid.
[54] Ibid.
[55] Ibid.
Respondent
It is not in contention that the Applicant did suffer from ‘bilateral carpal tunnel syndrome’ for which she underwent carpal tunnel decompression surgery on 12 July 2019. The issue in dispute is whether the Applicant’s bilateral carpal tunnel syndrome, was contributed to, to a significant degree, by her employment with the Department.
The reports of the medical experts do not support a finding that the Applicant’s ailment was contributed to, to a significant degree, by her employment with the Department. Dr Malhotra could not identify a definite cause for the flare up of the Applicant’s bilateral carpal tunnel syndrome. Associate Professor McGill opined that the development of the Applicant’s condition would have occurred regardless of the work duties she was performing, and her work did not have a significant contribution. Dr Gawarikar expressed the view that the Applicant’s carpal tunnel syndrome is due to repetitive movements due to excessive keyboard use. The Tribunal should prefer the opinions of Dr McGill and Dr Malhotra over the view of Dr Gawarikar because their opinions are supported by reference to the current medical literature in the field.
The Respondent contends that the fact it accepted liability for the Applicant’s first compensation claim should not have any bearing on the Tribunal’s decision in relation to the present claim. Neither the Tribunal or the parties are bound by Respondent’s acceptance of liability under the first claim: Commonwealth v Snell.[56] The Tribunal should give the fact of liability having previously been accepted limited weight as the evidence that supported acceptance of that claim was scant, and the Tribunal now has before it much more expert detailed medical evidence.
[56] [2019] 269 FCR 18.
In relation to whether in 2019 the Applicant suffered an aggravation of her non-work-related carpal tunnel syndrome there must be evidence, not just that she has experienced pain or symptoms from the underlying injury or underlying ailment, but that there has been an accompanying physiological change to the condition that was caused by the employment: Whitlock and Comcare.[57] There is no evidence of a physiological change in the Applicant’s bilateral carpal tunnel syndrome. If the Tribunal finds that experience of pain while at work from a non-work-related underlying ailment can be sufficient to make out an aggravation case, in the Applicant’s circumstances the medical evidence does not support a finding that those symptoms were significantly contributed to by work.
[57] [2020] AATA 1353.
CONSIDERATION AND REASONS
The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
1) Did the Applicant suffer an ‘ailment’?
Section 4 of the SRC Act defines an ‘ailment’ as ‘… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ In Kennedy Cleaning Services Pty Ltd v Petkoska,[58] Gleeson CJ and Kirby J stated:
The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.
[58] (2000) 200 CLR 286 at [40].
The meaning of ‘disease’ was considered by the Federal Court in Comcare v Mooi.[59] At the time of the decision, s 5B had not been enacted and the definitions of ‘disease’ and ‘ailment’ were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting:
By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.[60]
[59] (1996) 69 FCR 439.
[60] Ibid at [10].
Referring to the ordinary meanings of the word ‘disease’ as well as the meanings given in medical dictionaries, Drummond J concluded:
Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.[61]
[61] Ibid at [16].
The Respondent accepts that the Applicant suffers from bilateral carpal tunnel syndrome, and this is an ‘ailment’ for the purposes of the SRC Act. The Tribunal is satisfied that the Applicant’s carpal tunnel syndrome is an ‘ailment’ for the purposes of the Act as it is a ‘disturbance of the normal functions of body.’ What is in dispute is whether this ‘ailment’ was contributed to, to a significant degree, by the Applicant’s employment such that it is a ‘disease’ as defined in section 5B of the SRC Act.
Was the Applicant’s ailment ‘contributed to, to a significant degree’, by her employment?
Significant employment contribution
As Mortimer J noted in Comcare v Reardon,[62] (‘Reardon’) ‘… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it’.
[62] [2015] FCA 1166 at [75].
In Comcare v Power,[63] Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’,[64] and further that ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.[65] Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in s 5B of the SRC Act which requires the employment to have contributed ‘to a significant degree’ was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.[66]
[63] (2015) 238 FCR 187.
[64] Ibid at [78].
[65] Ibid at [82].
[66] Ibid at [93].
In Reardon and Comcare,[67] Member Taglieri summarised the meaning of ‘contribution to a significant degree’ as follows:
I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
[67] [2015] AATA 360 at [37].
In Su v Comcare,[68] Member Webb expressed the requirement of ‘contribution to a significant degree’ as follows, when approving of Justice Finn’s approach to its interpretation in Comcare v Sahu-Kahn:[69]
When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (Footnotes omitted).
[68] [2011] AATA 934 at [5].
[69] (2007) 156 FCR 536.
For the reasons outlined below, the Tribunal finds that the evidence, particularly the reports of the three medical experts, do not support a finding that the Applicant’s ‘ailment’ was contributed to, to a significant degree, by her employment with the Department.
In his report dated 2 September 2019, Dr Malhotra could not identify a definite cause for the flare up of the Applicant’s carpal tunnel syndrome in mid-2019. He noted that it is a ‘very common condition’ and is more frequent in women. Dr Malhotra’s report refers to the available medical literature in relation to the known risk factors for carpal tunnel syndrome, and notes that whether there is an association between repetitive hand/wrist use wrist use and workplace factors in the development of carpal tunnel syndrome is ‘controversial.’[70]
[70] Exhibit R1, T11, 19.
In his report dated 11 November 2020, Associate Professor McGill referred to the academic literature that has published the results of studies that have found that keyboard computer use does not increase the risk of carpal tunnel syndrome. He concluded that the development of the Applicant’s bilateral carpal tunnel syndrome would have occurred regardless of the work duties she was performing, and that her work did not make a significant contribution. Associate Professor McGill agreed with Dr Malhotra that in respect of repetitive and forceful activities, for example, doing boning work in an abattoir, the association between these activities and the onset of carpal tunnel syndrome is ‘controversial’. However, he emphasised that the literature makes clear that there is no controversy in relation to the lack of association between keyboard use and carpal tunnel syndrome.
In his report dated 11 January 2021, Dr Gawarikar concluded that the Applicant’s carpal tunnel syndrome is the result of repetitive movements due to excessive keyboard use. However, his statement of opinion as to causation is simply a bare statement of a conclusion without any explanation or reasoning to support it. Nor does he make reference to the available medical literature on the relationship between repetitive hand/wrist use and workplace factors to support his conclusions.
Of the three expert medical reports before it, the Tribunal prefers that of Associate Professor McGill, as his opinion is based on the academic literature which refers to the numerous studies that have consistently found that there is no reliable link between excessive keyboard use and carpal tunnel syndrome. Whereas Dr Malhotra’s report refers to the academic literature it does not reference articles which report the findings of studies specifically examining the relationship between carpal tunnel syndrome and keyboard use. Dr Gawarikar’s report does not reference any academic literature and his conclusions are not explained or supported by reasoning.
On the basis of the expert medical evidence before it, the Tribunal finds that it does not support a conclusion on the balance of probabilities that the Applicant’s employment, particularly doing repetitive keyboard work, significantly contributed to her carpal tunnel syndrome. Accordingly, the Tribunal finds that the Applicant did not suffer a ‘disease’ as defined in s 5B(1)(a) of the SRC Act, and therefore did not suffer an ‘injury’ which is compensable by the Respondent under s 14(1) of the Act.
Previous acceptance of liability
The Respondent previously accepted liability for the Applicant’s carpal tunnel syndrome following her lodgement of a compensation claim on 4 July 2011. For the reasons that follow, the Tribunal finds that the fact that there was acceptance of liability for the first claim does not have any bearing on the Tribunal’s decision in relation to the Applicant’s present claim which was lodged in October 2019.
In Telstra Corporation Ltd v Hannaford (‘Hannaford’),[71] the Full Court of the Federal Court considered whether the Tribunal is empowered to make findings of fact that are contrary to those found by the original decision-maker under s 14 of the SRC Act, in circumstances where the AAT is undertaking a review of determinations under s 16 and s 19 of the SRC Act. Conti J, with whom Heerey J and Dowsett J agreed, stated as follows:
… it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.[72]
[71] [2006] FCAFC 87.
[72] Ibid at [57].
Conti J concluded:
I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act [sic] and in the events which happened:
(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.[73]
[73] Ibid at [59].
In Portors v Comcare, Robertson J succinctly stated the effect of Hannaford:
The decision stands as authority for the proposition that in relation to its decision-making under, in particular, ss 16 and 19 of the Act, the Tribunal has power to make a finding of fact contrary to a finding of fact made in an original decision under s 14 even where the s 14 decision remains in force.[74]
[74] [2018] FCA 914 at [26].
This approach, which recognises the progressive and evolving nature of decision-making under the SRC Act, is consistent with that adopted by the Full Court of the Federal Court (Allsop CJ, Reeves and Derrington JJ) in Commonwealth v Snell:[75]
The authorities to which reference has been made suggest that the existence of s 78 (or its equivalent) has two distinctive impacts on the decision-making process. First, the decision-maker may expressly reconsider an earlier decision and make a different decision in its stead. Secondly, a decision-maker faced with a further claim from an employee, may make a decision on the new claim which is inconsistent with the first decision in which case it can be said the original decision is implicitly reconsidered. However, the effect of this approach is that the original decision remains operative to the extent that it is not eclipsed by the latter.
The combined effect of s 43(1) of the AAT Act and s 78 is to allow the Tribunal, when reviewing a decision, to reconsider any earlier decision of the employer as well as any of its previous decisions which are deemed to be of the employer. That being so it would be inconsistent or lacking in coherency for the Tribunal to conclude that it was bound by an earlier determination. To do so would render the power of reconsideration inutile or, at least, substantially diminish its operative effect.
…
There is nothing which requires commencing the decision-making process with any predisposition that any relevant material ought not to be considered merely because the issue to which it is relevant has been determined as part of an earlier decision. To the contrary, the power to reconsider earlier decisions negates the suggestion that the entity exercising the power should or could refuse to take into account any relevant material. To do so would necessarily diminish the power to reconsider. Additionally, it may deny a claimant their entitlement under the compensation scheme or impose on an employer a liability for compensation for which it is not responsible. It would also impose a rigidity on the flexible and continuous decision-making process provided for in these compensation schemes.
[75] (2019) 269 FCR 18; [2019] 57 FCAFC at [67] and [77].
On the basis of these authorities, the Tribunal is satisfied that neither it nor the Respondent is bound by the Respondent’s acceptance of liability in August 2011 of the Applicant’s first claim in determining the work contribution to the Applicant’s carpal tunnel syndrome in 2019 which is the basis of the claim which resulted in the Reviewable Decision. Even if regard is had to the findings that supported the acceptance of the previous claim in August 2011, the evidence on which liability was accepted was very limited, particularly in relation to the contribution of the Applicant’s work activities to her condition. In considering the Respondent’s liability in relation to the Applicant’s October 2019 claim, the Tribunal has before it considerably more evidence than was available to the decision-maker in August 2011, specifically the reports of the three medical experts. The Tribunal is satisfied that this evidence supports a finding that excessive keyboard use did not make a significant contribution to the Applicant’s carpal tunnel syndrome in 2019.
Did the Applicant suffer an aggravation of her non-work-related ailment which was significantly contributed to by her employment?
Was there an ‘aggravation of an ailment’?
The Tribunal has considered whether the Applicant suffered an aggravation of her non-work-related carpal tunnel syndrome in 2019 which was significantly contributed to by her work duties, specifically excessive keyboard use, and thereby satisfies the statutory test in s 5B(1)(b) of the SRC Act.
As Deputy President Humphries recognised in Millar and Comcare (‘Millar’),[76] prior to the High Court’s decision in Military Rehabilitation and Compensation Commission v May (‘May’),[77] there existed a long line of authorities in which it was held that an aggravation of symptoms of an existing condition may be sufficient to amount to an ‘injury’ for the purposes of the SRC Act, notwithstanding that there is no change to the underlying pathology.
[76] [2019] AATA 4973 at [141].
[77] (2016) 257 CLR 468.
In Commonwealth v Beattie (‘Beattie’),[78] the Full Federal Court considered the Compensation (Commonwealth Government Employees) Act 1971 (Cth). Evatt and Sheppard JJ made the following observations:
It is sufficient to point out that the words of the legislation here are different in that the word ‘injury’ is defined expressly to include the aggravation, acceleration or recurrence of any physical injury. Subject to what needs to be said about the absence from the legislation in question of the word ‘exacerbation’, it would seem to us that the position in relation to physical injury under the legislation in question must be the same as it is in relation to disease. The Federal Broom case is, therefore, subject to the differences in the legislation, an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology. Whether there is an exacerbation or an aggravation in such a case will be a question of fact.[79]
[78] (1981) 35 ALR 369.
[79] Ibid at [200].
Their Honours were of the view that the words ‘exacerbate’ and ‘aggravate’ were synonymous, and both meant an ‘increase in severity of disease or suffering’.[80]
[80] Ibid.
Their Honours referred to Kitto J’s judgment in Federal Broom Co Pty Ltd v Semlitch, (‘Federal Broom’)[81] and observed:
… there can be cases where there will be an exacerbation – and thus in our view an aggravation – of a previously existing injury by activity which increases or precipitates pain. Rubbing salt into a wound, the example taken by Kitto J., is but an instance of this.
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury…Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.[82]
[81] (1964) 110 CLR 626 at 634.
[82] Ibid at [201].
The general conclusion that pain or symptoms resulting from or increased by work without worsening an underlying condition can be an aggravation under the SRC Act has consistently been recognised by the Federal Court. For example, in Commonwealth Banking Corporation v Percival,[83] the Full Federal Court (Davies, Sheppard and Ryan JJ) noted that:
It is indeed fundamental to compensation law that a symptom of an injury or a disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease.[84]
[83] (1988) 20 FCR 176.
[84] Ibid at [180].
In Tippett v Australian Postal Corporation (‘Tippett’),[85] after quoting the above passage of Kitto J in Federal Broom, Finkelstein J observed:
In other words, there will be an exacerbation of an injury when the experience of the injury is increased or intensified without any alteration to the underlying physical or mental condition … it has been held that the same principles apply; that is to say injury will be aggravated if the experience of the injury is increased or intensified: Commonwealth v Beattie (1981) 53 FLR 191. In addition, because ‘aggravation’ of an injury is defined to include the ‘recurrence’ of that injury it is not necessary to show that the experience of an injury is increased or intensified. It will be sufficient if, as a result of activities undertaken in the course of employment, a previous injury occurs again whether or not the experience of it is at the same level of intensity as before.[86]
[85] (1998) 27 AAR 40.
[86] Ibid at [43]-[44].
Both Beattie and Tippett have been applied in subsequent Federal Court decisions. Although, as Bennett J explained in Mellor v Australian Postal Corporation:[87]
Further, Australia Post points out that the tribunal was referred to Tippett v Australian Postal Corporation (1998) 27 AAR 40, which inaccurately summarised the joint judgment of Evatt and Sheppard JJ in Beattie as stating that the injury will be aggravated if the experience of the injury is increased or intensified. In fact, their Honours said that ‘it is enough to say that the pain brought on by work activity may constitute an aggravation’. [88]
(emphasis added).
[87] (2009) 108 ALD 159.
[88] at [42], [167].
In Reardon, Mortimer J followed Tippett and held that when the experience of an injury (for example, pain) is increased or intensified or recurs there may an aggravation of the injury even though there has been no increase in the underlying pathology.[89] Her Honour also pointed out that there must be a causal and not merely a temporal connection to work.[90]
[89] [2015] FCA 1166; 148 ALD 356 at [31], [364]-[365].
[90] Ibid at [39].
The approach in Tippett has been adopted more recently by the Federal Court in Military Rehabilitation and Compensation Commission v Katterns,[91] and by the Tribunal in Rutledge and Comcare,[92] Fletcher and Comcare,[93] Skobelkin-Mulcair and Comcare,[94] Stefaniak and Comcare,[95] Knox and Comcare,[96] and Wood and Comcare.[97]
[91] [2017] FCA 641 at [48].
[92] [2011] AATA 865 at [10].
[93] [2015] AATA 430 at [41].
[94] [2019] AATA 1054 at [82]-[83].
[95] [2019] AATA 1866 at [64]-[65].
[96] [2019] AATA 2196 at [133].
[97] [2019] AATA 981 at [62]-[63].
In May, the majority of the High Court observed as follows:
49. It is against that background that the Act requires the tribunal of fact to give consideration to ‘the precise evidence, on a fact by fact basis, … accepted at trial’ and then to ask certain questions in order to determine whether an employee is suffering a ‘disease’ or an ‘injury (other than a disease)’.
50. First, does the evidence amount, relevantly, to something that can be described as an ‘ailment’, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51. If the answer to both those questions is ‘Yes’, there is a ‘disease’ within par (a) of the definition of ‘injury’. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is ‘No’.
52. If there is not a ‘disease’ within par (a) of the definition of ‘injury’, the tribunal of fact next inquires whether there is an ‘injury (other than a disease)’ within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental ‘injury’ (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an ‘injury (other than a disease)’. The language of judgments should not ‘be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act …’
Not sufficient for an employee merely to feel unwell
57. The Full Court concluded that the inquiry demanded by the statutory definition of ‘injury’ was ‘whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind’ (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.
58. That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on ‘an injury’.
59. Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.
60. Third, as seen earlier, the word ‘injury’ in ‘injury (other than a disease)’ has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the ‘precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change’.
61. Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.
62. The ‘nature and incidents of the physiological [or psychiatric] change’ will determine whether there was an ‘injury (other than a disease)’. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.
(Emphasis added, references omitted.)
In Whitlock and Comcare (‘Whitlock’),[98] the Respondent argued that the High Court’s decision in May, particularly the passage highlighted above in paragraph [57] of the majority’s decision, casts doubt on whether a complaint characterised by the experience of symptoms without an accompanying physiological change can amount to a ‘disease’ pursuant to s5B.[99] It further relied on Canute v Comcare (‘Canute’),[100] in support of its contention that the High Court’s recent jurisprudence casts doubt on the authorities cited above, which find an ‘aggravation’ in circumstances involving a lack of persuasive evidence of an identifiable change to the underlying pathology of the relevant condition.
[98] [2020] AATA 1353.
[99] Outline of Respondent’s Closing Submissions [5].
[100] (2006) 226 CLR 535.
In Whitlock, the Tribunal accepted the Respondent’s contention that, the High Court’s decisions in May and Canute support a finding that, in circumstances where the Applicant has a pre-existing condition or disease, in order for there to be an ‘aggravation’ of such an ailment for the purposes of the SRC Act, there must be evidence of an ‘accompanying physiological or psychiatric change’.[101] The majority’s decision in May in particular emphasises that it is not sufficient for an employee merely to assert that they are feeling unwell or subjectively experiencing symptoms. The evidence must demonstrate that, in addition to symptoms or pain experienced by the employee, there is a discernible or diagnosable physiological or psychiatric change to the employee’s body or psyche.
[101] Ibid at [196]-[197].
There is other Tribunal authority for the approach adopted by the Tribunal in Whitlock. In Williamson and Comcare,[102] Deputy President Pascoe held, citing May:
Subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, is simply insufficient to meet the requirements of the Act.[103]
[102] [2019] AATA 4774.
[103] Ibid at [45].
As Deputy President Humphries noted in Millar, this decision suggests that principles contained in the authorities cited above, ‘are indeed being revisited’.[104]See also Comcare v Stefaniak,[105] Wuth and Comcare,[106] De Tarle and Comcare,[107] and Cavanagh and Comcare;[108] cf Priestly and Comcare,[109] and Martin and Comcare.[110]
[104] Ibid at [142].
[105] [2020] FCA 560.
[106] [2020] AATA 3625.
[107] [2021] AATA 94.
[108] [2021] AATA 499.
[109] [2019] AATA 5456.
[110] [2021] AATA 2455 at [67].
In the Tribunal’s recent decision in Campion and Comcare (Compensation),[111] Deputy President Sosso referred to Whitlock and other Tribunal decisions cited above and stated:
However, as with Beattie, Tippett and Katterns, where there is a primary ailment or injury, then the experience of secondary pain may constitute an aggravation. To the extent that any of the previous Tribunal determinations have gone further and held that the experience of pain can never constitute the aggravation of an injury, I respectfully disagree.
Whether the pain experienced by a worker constitutes an “aggravation” of an underlying injury is a question which can only be determined on the basis of the evidence presented.[112]
(emphasis in original)
[111] [2021] AATA 4310.
[112] Ibid at [238]-[239].
Applying the approach in Whitlock to the Applicant’s circumstances, the Tribunal has considered whether there is evidence of a ‘physiological change’ to the Applicant’s pre-existing condition to determine whether there was an ‘aggravation’ of her non-work-related ailment. For the reasons that follow, the Tribunal finds that there is evidence of a ‘physiological change’ to the Applicant’s carpal tunnel syndrome in mid-2019 and accordingly finds this amounted to an ‘aggravation’.
The medical evidence before the Tribunal is that in May 2019 the Applicant experienced a ‘flare up’ in the symptoms of her pre-existing carpal tunnel syndrome. Nerve conduction studies performed in June 2019 by Dr Malhotra revealed ‘severe, bilateral carpal tunnel syndrome’ which was of sufficient severity to warrant her undergoing bilateral carpal tunnel decompression surgery. The available evidence supports a finding that the increase in the Applicant’s symptoms was a progression of her pre-existing bilateral carpal tunnel syndrome that was first diagnosed in December 2010. The Tribunal is therefore satisfied that this deterioration in her condition can be described as a ‘physiological change’.
On the basis of the evidence before it, and adopting the approach in Whitlock, the Tribunal is satisfied on the balance of probabilities that the flare up of symptoms the Applicant experienced in 2019 was a result of an actual physiological change in her pre-existing carpal tunnel syndrome. Accordingly, the Tribunal finds that the Applicant suffered an ‘aggravation’ of her non-work-related ailment in May 2019.
Although the Tribunal has applied the approach adopted in Whitlock to assess whether the Applicant experienced an ‘aggravation’ of her pre-existing condition, the test for ‘aggravation’ in Tippett and Beattie is also satisfied on the facts. The Applicant’s symptoms of her pre-existing carpal tunnel syndrome increased, intensified or recurred in mid-2019, and accordingly applying these authorities and the statutory test in s 5B(1)(b) there was an ‘aggravation’ of the Applicant’s condition even if there had been no increase in the underlying pathology as demonstrated by the nerve conduction studies.[113]
[113] Ibid at [31], [364]-[365].
Whereas there is an apparent temporal relationship between the ‘physiological change’ to the Applicant’s pre-existing carpal tunnel syndrome and her employment, to satisfy the statutory test in s 5B(1)(b) of the SRC Act the Applicant’s employment must have contributed to this deterioration to a significant degree. As Mortimer J pointed out in Reardon, that there must be a causal and not merely a temporal connection to work.[114]
[114] [2015] FCA 1166 at [75]
In Tippett, Finkelstein J emphasised that if the employee suffered pain from the pre-existing injury, whether or not they were at work, then there would be no compensable aggravation. His Honour referred to the passage at Beattie quoted above at [80], and observed:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.[115]
[115] (1981) 35 ALR 369 at 44
Having regard to these authorities, it is necessary to consider the evidence before the Tribunal to determine whether there is a causal relationship between the aggravation of the Applicant’s pre-existing carpal tunnel syndrome and her work activities. Professor McGill’s opinion is that the Applicant’s bilateral carpal tunnel syndrome would have occurred at the same time in 2019 ‘regardless of the work duties she was performing’. Dr Malhotra stated that ‘no definite cause’ could be found for the flare up of the Applicant’s carpal tunnel syndrome in May 2019. On the basis of this evidence, it cannot be concluded, having regard to the statutory tests, that the Applicant’s symptoms were contributed to by her work.
Further support for this finding is found in the Applicant’s own account of her experience of symptoms of carpal tunnel syndrome during this period. The Applicant’s evidence is that she suffered the symptoms outside of work, including at night, when she woke up in the morning, while she was driving and when she was cooking, stirring and taking off lids. Her evidence is that when the symptoms returned, they were always there, and not just when she was working. Accordingly, there is no correlation between the Applicant’s experience of symptoms and her being at work. The Applicant’s circumstances are of the kind Finkelstein J foreshadowed in Tippett, namely that where an employee suffers from pain from the underlying ailment whether or not they are at work there is no compensable aggravation.
Accordingly, on the basis of the evidence before it and for the reasons stated, the Tribunal finds that the Applicant did not suffer a ‘disease’ as defined in s 5B(1)(b) of the SRC Act, and therefore did not suffer an ‘injury’ recognised by the Act.
The Tribunal is not satisfied that the Applicant suffered an ‘injury’ for which the Respondent is liable to pay her compensation under s 14(1) of the SRC Act.
DECISION
The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act1975.
I certify that the preceding 101 paragraphs (one-hundred and one) are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.
.
.......[sgd].................................................
Associate
Dated: 24 December 2021
Date of hearing:
23- 24 June 2021
Date final submissions received:
23 June 2021
Solicitor for Respondent:
Jerry Li, Moray & Agnew Lawyers
Counsel for Respondent:
Stephanie Patterson, Sixth Floor
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