Mercado and National Australia Bank Limited (Compensation)
[2022] AATA 2136
•1 July 2022
Mercado and National Australia Bank Limited (Compensation) [2022] AATA 2136 (1 July 2022)
Division:GENERAL DIVISION
File Number: 2020/4641
Re:Jenny Mercado
APPLICANT
National Australia Bank LimitedAnd
RESPONDENT
Decision
Tribunal:Senior Member P.Q. Wood
Date:1 July 2022
Place:Melbourne
The Tribunal sets aside the decision under review, and in substitution decides:
1.the Applicant suffered incapacity and impairment as a result of a right extensor carpi ulnaris tenosynovitis – right wrist and forearm condition which arose out of or in the course of employment with the Respondent, the subject of a claim for compensation dated 20 November 2019, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
2.the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
..........................[sdg]..............................................
Senior Member P.Q. Wood
Catchwords
COMPENSATION - claimed injury identified as right extensor carpi ulnaris tenosynovitis – right wrist and forearm – whether the Applicant suffered incapacity or impairment that arose out of or during the course of employment – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member P.Q. Wood
1 July 2022
INTRODUCTION
On 3 August 2020 Jenny Mercado (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of a decision made by National Australia Bank Limited (“the Respondent”) on 18 March 2020, which affirmed the primary decision dated 16 January 2020 to deny liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) in respect of the claimed injury identified as right extensor carpi ulnaris tenosynovitis – right wrist and forearm (“the condition”).
The Applicant was represented by Ms C Serpell, and Mr J Lessing appeared for the Respondent.
Oral testimony was heard from the Applicant, Mr Moaveni (orthopeadic surgeon), Dr Dixon (plastic/hand surgeon), Mr Giannikos, and Mr Meloni.
The matter was heard via videoconference on 8, 9, 10 and 25 February 2022.
issues
The issue before the Tribunal is whether the Applicant is entitled to compensation under s 14 of the SRC Act for the condition. Subsequently, the Tribunal must consider whether the Applicant suffers:
(a)a ‘disease’, being an ailment, or the aggravation of an ailment, to which employment made a significant contribution; and/or
(b)an ‘injury (other than a disease)’ that is a physical or mental injury:
(i)arising out of, or
(ii)in the course of,
the employee’s employment; and/or
(c)the aggravation of an injury (other than a disease) being an ‘aggravation that arose our of, or in the course of, that employment’.
legislation
Liability for compensation arises under s 14 of the SRC Act in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
‘Injury’ is defined under s 5A(1) of the SRC Act to mean:
(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.
The definition of ‘disease’ is found under s 5B(1) of the SRC Act, which includes:
(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.
The term “ailment” is defined by s 4(1) to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
“Aggravation” includes acceleration or recurrence (s 4(1) of the SRC Act). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593:
“Aggravation” means, I think, that an existing disease has been made worse, not that it has simply become worse. “Acceleration” I have previously said and venture to repeat “probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli” (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, 639-640) [citation included] …
Under s 5B(2) of the SRC Act, a number of matters may be taken into account when determining whether the ailment, or its aggravation, meets the causal test in s 5B(1):
(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.
consideration
The evidence considered by the Tribunal includes:
(a)the documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), referred to as the T Documents (Exhibit R1);
(b)the Applicant’s statement dated 8 October 2021;
(c)various medical reports and other tendered documents, comprising Exhibits A1 to A3 and R2 to R5; and
(d)the oral evidence of:
(i)the Applicant;
(ii)Mr Moaveni (orthopeadic surgeon);
(iii)Dr Dixon (plastic/hand surgeon);
(iv)Mr H Giannikos; and
(v)Mr N Meloni.
I also considered the submissions of the parties.
The Applicant
The Applicant is a longstanding employee of some 20 years with the Respondent.
The Applicant’s evidence is that she works in a fraud investigation related area, and that ordinarily her work involves constant computer use and highly repetitive and prolonged typing tasks, which is estimated by her to occupy 95% of her role.
The Applicant gave evidence that she is right hand dominant. She told the Tribunal that she has three computer monitors that she operates with a computer mouse, and that she has to use the mouse to move between the three monitors as she performs highly repetitive and prolonged keyboarding.
The Applicant’s evidence was that although two days preceding her first experiencing pain in September 2019, she played volleyball at an annual family event for between 5 and 10 minutes, serving only 3 times, she did not experience any pain at the time of playing. I observe that there was no suggestion that the volleyball activity was competitive in nature or played regularly.
The Applicant told the Tribunal that any gardening she performs at home are light in nature and not strenuous.
The Applicant gave oral testimony and was cross-examined for more than a day. I found the Applicant to be mostly consistent, forthright, and open in her evidence. I find the Applicant to be a credible witness.
Mr Moaveni
Mr Moaveni is an orthopaedic surgeon who gave oral testimony and provided a statement in relation to his assessment and diagnosis of the Applicant on 22 November 2021. Mr Moaveni said that he normally sees 1200 – 1300 new conditions per year.
In his report, Mr Moaveni states:
In September 2019, Ms Mercado started to experience pain on the ulnar border of her right forearm. She first advised her work of this injury on 02 October 2019.She consulted her General Practitioner who advised non-operative treatment including anti-inflammatories, a wrist splint and physiotherapy. She was seen by Dr Malone, an experienced Orthopaedic Surgeon, who diagnosed Ms Mercado extensor carpi ulnaris tendinitis. A cortisone injection resulted in short-term pain relief.
Ms Mercado was subsequently referred to Dr Mammen, another experienced Orthopaedic Surgeon, who diagnosed Ms Mercado with extensor carpi ulnaris tenosynovitis as well as TFCC injury and an ulnar positive variance of the wrist.
In August 2020, Ms Mercado underwent TFCC repair and ulnar shortening osteotomy. Ms Mercado’s recovery was slow, but she has now recovered well. She was able to return back to work in August 2021 three hours per day on five days per week in a similar capacity with slight reduction in her typing to reduce wrist usage.
Ms Mercado stated that the National Australia Bank advised her to stop work on 10 September 2021 despite the fact that she had recovered well from her surgery and did not have any significant ongoing symptoms.
Mr Moaveni explained that the condition that the Applicant has is one that develops over time.
Mr Moaveni stated that he would consider that six hours of typing tasks, or approximately 72% of a working day, would constitute repetitive typing tasks.
Mr Moaveni stated that he has never seen someone with an injury who had no pain at the start, only to then have pain develop later. He said that he didn’t consider that the volleyball playing caused the injury.
Mr Moaveni told the Tribunal that the condition could not be caused by striking a volleyball because the extensor carpi ulnaris is on the dorsal side, or back, of the wrist. He said that the condition was most likely caused by repetitive activities.
Mr Moaveni said that the fact that the Applicant has not complained for 20 years is irrelevant from a medical perspective, as the condition ordinarily develops over time and that the period and tolerance of individuals in developing the condition varies. He said that everybody is different as to where their ‘tipping point’ is.
In his report, Mr Moaveni states:
6. The relationship between our client's injury and employment, if any. In particular, whether you believe that our client's employment has caused, aggravated or accelerated any underlying condition.
In my opinion, Ms Mercado’s employment has aggravated her right wrist condition. Specifically, Ms Mercado had ulnar positive variance (i.e. slightly overlong right ulnar causing pain on the ulnar side of the right wrist). Given the repetitive nature of her work at the National Australia Bank for a period of more than 20 years, this has aggravated her right wrist pain.
7. Whether you believe that our client’s employment has significantly contributed to her condition
In my opinion, Ms Mercado’s employment has significantly contributed to her condition. She was employed by the National Australia Bank for over 20 years.
Mr Moaveni considers the Applicant to have an excellent prognosis and that she would be fit to return to work in a graduated manner.
Dr Dixon
Dr Dixon examined the Applicant on 23 June 2021, gave oral testimony at the hearing and provided a statement dated 6 July 2021 (Exhibit R2, p 1-24) and a supplementary report dated 17 August 2021 (Exhibit R2, p 25-30), in relation to his assessment and diagnosis of the Applicant.
Dr Dixon is an experienced plastic/hand surgeon who told Tribunal that he has also had an interest in sports medicine over the course of his career.
Dr Dixon told the Tribunal that he now focuses his work exclusively as a medico-legal report writer, having ceased treating patients approximately 10 years ago following a serious health condition.
In his first report, Dr Dixon responded to questions as follows:
c. In your opinion, was Ms Mercado’s claimed condition contributed, to a significant degree, by her employment with NAB? Please explain your answer.
On balance Yes.
1. Ms Mercado suffered an initial unrecognised injury at the volleyball and subsequently employment aggravated the condition.
2. I make the charge of “suffered an initial unrecognised injury at the volleyball” as indicated by significant complaints of symptoms and observation of Dr Ng in the week following the volleyball.
3. It is also noted the length of employment during which she avoided a similar medical condition.
d. If you consider Ms Mercado's employment has contributed, to a significant degree, to her claimed condition, please identify the duties or aspects of her employment and how they have contributed to her claimed condition.
Ms Mercado at the time of examination was requested to demonstrate her mouse action. On balance persistent pronation caused the aggravation in a wrist inflamed by the Volleyball incident.
In his oral testimony, Dr Dixon restated his opinion that the Applicant experienced an ‘unrecognised’ injury during the before mentioned volleyball participation and then aggravated the injury at work.
Dr Dixon told the Tribunal that in his experience, injuries of the kind that the Applicant experienced are not always apparent and can come on within 48 hours.
For reasons that I set out below, I am not persuaded by Dr Dixon’s evidence.
Mr H Giannikos
Mr Giannikos is a team leader in the fraud services section of the Respondent, who gave oral testimony at the hearing and provided a statement (Exhibit R2, p 31-35).
Mr Giannikos told the Tribunal about changes to the Applicant’s work environment, involving a reclassification between ‘fraud adviser’ and ‘fraud analyst’ descriptions.
Mr Giannikos’ evidence confirmed that the Applicant works in a fraud investigation related area at a computer. Whereas the Applicant estimated that her work involves 95% typing tasks, Mr Giannikos estimated this to be 85%.
Mr Giannikos told the Tribunal that in 2019 he had approved the Applicant to work from home at times.
In his evidence, Mr Giannikos recollected that the Applicant had said that she had injured her wrist gardening. Whilst the Applicant was confident of this, he did not however provide any specifics of any discussion with any specific individuals, including himself.
Mr Giannikos described the Applicant as an employee who has accessed her sick leave entitlements, worked shorter days compared to her peers, and required management assistance in administering and recording her sick leave entitlements.
Mr Giannikos was careful not to refer to the Applicant as a malingerer, but this was the impression that he invited the Tribunal to form, albeit by inference at times. In cross-examination however, he did not dispute that the Applicant had received numerous awards from the Respondent for her work, including an award recommended by the Australian Federal Police for her role in identifying particular fraudulent activity.
Mr Meloni
Mr Meloni is the manager of the fraud services section of the Respondent who gave oral testimony and provided a statement (Exhibit R2, p 37-39).
Mr Meloni also confirmed that the Applicant works in a fraud investigation related area at a computer.
Mr Meloni told the Tribunal about changes in the Applicant’s work environment, involving a reclassification between ‘fraud adviser’ and ‘fraud analyst’ descriptions. Mr Meloni spoke of the Applicant being required to analyse data, collate data, and use Microsoft Excel on a daily basis.
Whereas the Applicant estimated that her work involves 95% typing tasks, Mr Meloni estimated this to be 90%.
Mr Meloni told the Tribunal that the Applicant told him that she had a sore wrist from gardening. I accept that the Applicant did say this to Mr Meloni, albeit the medical evidence now reveals that she was mistaken at the time.
FINDINGS
Whilst I acknowledge Dr Dixon’s previous experience as a practicing hand/plastic surgeon, I consider that the Applicant would have known if she experienced trauma from the short volleyball play at the family event causing the condition. In giving evidence, at times Dr Dixon abandoned the use of ordinary medical terminology, favoring analogies instead, and became agitated when asked about his decision to cease treating patients. I attach less weight to his evidence.
I do not accept the Respondent’s contention that the injury was caused by the Applicant undertaking gardening at home. I also do not accept the Respondent’s contention that the Applicant performs ordinary office work, given the need for constant typing and mousing, and consider that this submission fails to appreciate the nature of repetitive injuries. The evidence of each of the workplace witnesses was that the Applicant performs repetitive typing tasks and has done so for some time.
I find that the evidence of Dr Dixon was of lesser assistance to the Tribunal when compared to the more cautious evidence of Mr Moaveni, whose opinion and views regarding the Applicant’s condition are informed by his contemporary experience as a practising upper limb specialist who continues to treat 1200 to 1300 patients per year. Mr Moaveni’s considered testimony was entirely convincing and supported by other evidence. I attach strong weight to his evidence.
I observe that even if I were to accept Dr Dixon’s opinion that the Applicant suffered an initial unrecognised injury playing volleyball and then aggravated that injury whilst undertaking typing tasks in the days thereafter, which I do not, this would be compensable regardless.
Consistent with the acceptance of the evidence of the Applicant and Mr Moaveni, I find that the Applicant suffered an injury (other than a disease) pursuant to s 5A(1)(b) of the SRC Act, which arose out of or in the course of employment with the Respondent.
CONCLUSION
In light of the matters set out above, I find it correct and preferable to set aside the decision under review and make a substitute decision in favour of the Applicant. Consequently, it is appropriate to also make a costs order.
DECISION
The Tribunal sets aside the decision under review, and in substitution decides:
(a) the Applicant suffered incapacity and impairment as a result of a right extensor carpi ulnaris tenosynovitis – right wrist and forearm condition which arose out of or in the course of employment with the Respondent, the subject of a claim for compensation dated 20 November 2019, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
(b) the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
55. I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the written reasons for the decision of Senior Member P.Q. Wood
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Associate
Dated: 1 July 2022
56. Dates of hearing:
57. 8, 9, 10 and 25 February 2022
58. Counsel for the Applicant:
59. Ms C Serpell
60. Solicitors for the Applicant
61. Angela Sdrinis Legal
62. Counsel for the Respondent:
63. Mr J Lessing
64. Solicitors for the Respondent:
65. Sparke Helmore
EXHIBIT REGISTER
File No 2020/4641
Between Jenny Mercado (Applicant)AndNational Australia Bank Limited (Respondent)
Heard on 8, 9, 10 and 25 February 2022
Before Senior Member P. Q. Wood
EXHIBIT DESCRIPTION OF EVIDENCE
A1
Applicant’s Statement dated 8 October 2021
A2
Applicant’s Resume
A3
Applicant’s Bank Statements dated 17 May 2019 – 15 November 2019
R1
T Documents
R2
Respondent’s Hearing Tender Bundle
R3
NAB Pay Advice Bundle dated 2 May 2019 – 30 October 2019
R4
Report of Mr Mammen dated 14 December 2021
R5
MRI Report by Dr Peter Smith dated 6 April 2020
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Remedies
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Costs
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Statutory Construction
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