MILAGROS GARCIA and COMCARE

[2010] AATA 362

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 362

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/2917

GENERAL ADMINISTRATIVE DIVISION		)
Re		MILAGROS GARCIA

Applicant

And COMCARE

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member and
Dr J B Morley, RFD, Member

Date17 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

Senior Member

CATCHWORDS

COMPENSATION – Injury – Whether applicant suffered an injury in the nature of a “disease” – Whether employment contributed to “disease” in a significant degree – Decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14

Safety, Rehabilitation and Other Legislation Act 2007 (Cth)

REASONS FOR DECISION

17 May 2010 Dr P McDermott, RFD, Senior Member and
Dr J B Morley, RFD, Member       

INTRODUCTION

1.      Ms Milagros Garcia (the applicant) was employed by Centrelink when she made a claim for compensation as a result of being injured at work.  In 2008, the applicant lodged a claim for compensation for her left lateral epicondylitis condition.  After having reviewed the medical evidence that has been placed before us, we have come to the conclusion that she is not entitled to compensation for this condition.  We give our reasons.

RELEVANT LEGISLATION

2.      The legislation that we have to administer is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

3. The date of the applicant’s injury is deemed, in accordance with s 7(4) of the Act, to be 23 October 2007. This is the date on which she sought treatment for her right wrist and elbow condition.

4.      This application has to be determined by the amendments to the Act which were effected by the Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth).  These amendments came into force on 13 April 2007.

5. Comcare is liable under s 14 of the Act to pay compensation to an employee for an “injury” that results in incapacity for work, or impairment, or which occasions medical or related expenses.

6. The expression “injury” is defined in paragraph (a) of s 5A of the Act to include “a disease suffered by an employee”. We have examined whether the condition of lateral epicondylitis in the left elbow of the applicant is a “disease”.

7. Section 5B of the Act defines a disease to mean an ailment suffered by the employee or an aggravation of such an ailment that was contributed to in a significant degree by the employee’s employment with the Commonwealth. In determining whether an ailment or aggravation was contributed to in a significant degree by her employment with the Commonwealth, the matters in s 5B of the Act may be taken into account.

8. We do not consider that the evidence before us supports the application of paragraphs (b) and (c) of s 5A of the Act. An injury is defined in paragraph (b) to include a “physical" injury. We later mention that the records of the applicant’s treating general practitioner contain the remarks: "There was no history of a specific injury". There has been some inconsistency in the statements made by the applicant. She advised Dr J Morris that the first time she experienced pain was when she was at home. However, in evidence before this Tribunal she asserted that this occurred at the workplace. We also consider that the definition of an "injury" in paragraph (c) is inapplicable. That definition applies in a case where there is an aggravation of an injury: there is no suggestion that there is any such aggravation.

BACKGROUND

9.      The applicant in her evidence stated that she first experienced pain at a spot on her left elbow which she pointed to when giving evidence before us.  The location of the spot was described by the medical member of this Tribunal as being the outer aspect immediately related to her left elbow.  In giving evidence, she stated that the pain in her elbow first occurred in July or August of 2007.

10.     The applicant in giving evidence stated that she was doing her normal duties on the phone, typing, and talking to customers.  She stated that some two and a half hours later, after a long call, she outstretched her hand which was very painful at the elbow location.  At that time, she did not really take notice of it and continued working the whole day.  The applicant stated that the pain occurred at the same area where the scar is.  The applicant then stated that she continued to work for at least two weeks over which time the pain worsened.  She stated that she could not lift a bottle of water, could not carry her handbag or bags of groceries because the pain was excruciating.  The applicant stated that she was unable to lift a cup of tea or coffee.

11.     The records of Dr Griffith, the treating general practitioner of the applicant, contains the comments: “There was no history of a specific injury”.[1]  However, Dr Griffith has commented: “It would seem likely that her prolonged typing, telephone usage and mouse usage are the causes of her conditions.  Possibly the right side occurred because of the extra strain due to the earlier left sides problem”.[2]

[1] T 15 fol 107

[2] T 15 fol 108

12.     Evidence as to the workplace of the applicant was given by Ms V. Glover who is the manager of the centre where the applicant was employed.  Ms Glover in her signed statement of 23 December 2009 remarked that she would estimate that the applicant would on average answer approximately 45 calls per day over a 7.5 hour day.  Ms Glover stated that at the end of each call it would be necessary for the applicant to key approximately one to two lines of data.  This evidence of Ms Glover was based on her survey of the workload at the centre where the applicant was employed. 

13.     This survey of Ms Glover had regard to the workload as well as the software at the centre at the time when the applicant claimed to have been injured i.e. June, July and August 2007.  Ms Glover also had regard to the software that was used at that time. 

14.     The applicant did not challenge any remarks which were made by Ms Glover in her statement other than to question what was the relevant period of her survey.  We might mention that when the applicant first saw the statement by Ms Glover, it was not apparent from that statement what time period it related to.  After Ms Glover gave evidence, the applicant was given the opportunity to comment upon the conclusion Ms Glover.  The tenor of the evidence of the applicant was that Ms Glover was a person who had recent experience in receiving calls.

15.     The applicant, in giving evidence mentioned that, she had not received relief from a cortisone injection.  She stated that she had declined to have a second cortisone injection as she was concerned about the side effects of such treatment.    However, the records of Dr Lee refers to the applicant having two cortisone injections.[3]  Dr Griffith, her treating general practitioner, only refers to the applicant having received one cortisone injection.[4]  The applicant then mentioned that she did not receive any relief from acupuncture.  The applicant stated that as she mainly used her left hand, it was therefore important to obtain treatment for the left elbow condition.  She went to the Philippines to receive surgery for her elbow condition where her relative arranged the operation.

[3] T 6 fol 68

[4] T 15 fol 107

ISSUE FOR CONSIDERATION

16.     We have to consider whether the condition of lateral epicondylitis in the left elbow of the applicant was contributed to in a significant degree by her employment at Centrelink.

TREATING GENERAL PRACTITIONERS        

17.     On 3 September 2007, the applicant consulted with Dr B Griffin, her treating general practitioner, about the pain in her left elbow.  The applicant then reported that the pain began spontaneously in the left elbow in mid to late August 2007.  Dr Griffin in his report of 20 February 2008 considered that the tenderness and pain on resisted movements were suggestive of a condition of left lateral epicondylitis.

18.     On 3 April 2008, Dr Griffin made a report in which he reiterated that the condition of the applicant was connected to her typing and computer work with Centrelink.  In that report, he disagreed with the conclusion that Dr Douglas expressed in his report of 26 February 2008 in which Dr Douglas opined that the lateral epicondylitis condition of the applicant was as a result of degenerative changes.

19.     In a further report of 8 December 2008, Dr Griffin maintained his opinion that the lateral epicondylitis was as a direct result of work activity and that any home activity or underlying degeneration could not be blamed for the left elbow problem.

20.     Dr Griffin gave evidence by telephone in support of the claim of the applicant.  In his evidence, he stated that he still stands by the reports that he made.  Under cross-examination, he reiterated that the work environment was the major trigger for the condition of the applicant.  However, he remarked that it was “obviously not the sole trigger”.  Dr Griffin explained his view that “once someone develops a repetitive strain injury or a soft tissue injury or a musculoskeletal injury, say, through excessive use in the work environment.  I mean, after that, virtually any activity that person does is going to cause pain and inflammation for that person”.

21.     Dr D Lee, general practitioner, in his report of 8 January 2008 has diagnosed the applicant as having “left tennis elbow and a strained right wrist”.  Dr Lee had advised that the applicant had undergone two cortisone injections and that he would administer acupuncture treatment in that month.

SPECIALIST EVIDENCE

22.     The specialists who have reviewed the applicant do not share the opinion of Dr Griffin that the lateral epicondylitis condition is caused by her employment.  These specialists are Dr D Douglas, consultant occupational physician and Dr J Morris, orthopaedic surgeon.

23.     Comcare also arranged for the applicant to be reviewed by Dr P Haynes, consultant occupational physician and Dr S Buckland, consultant occupational physician.

Dr Douglas

24.     On 26 February 2008, Dr Douglas, after reviewing the case of the applicant, wrote his report in which he came to the conclusion that the applicant had a condition of lateral epicondylitis of the left elbow and tendonitis and a strain of the extensor carpi ulnaris tendon at the right wrist.  His report mentions that the applicant had reported that she had first noticed a pain in her left elbow at work in July 2007.  This pain was not severe enough to interfere with her work at the time and she continued for the following two weeks.  After this, she reported to her employer when the pain increased.  Dr Douglas in his report had expressed the opinion that the lateral epicondylitis condition was unlikely to be work related and is a condition that is usually related to degenerative changes at the left elbow.  He stated that the condition occurs spontaneously in a significant percentage of people of the applicant’s age.

25.     On 22 January 2009, Dr Douglas wrote a report in which he again reiterated his opinion that the lateral epicondylitis condition was unlikely to be work related.  At that time, he had the benefit of considering further medical reports, including a report dated 1 May 2008 from the Brisbane Hand and Upper Limb Clinic.

26.     The report of Dr Douglas of 1 April 2009 is a comprehensive medico-legal report which was made after Dr Douglas had reviewed all of the available records and had interviewed and examined the applicant.  In that report, Dr Douglas had remarked: “In my opinion, Ms Garcia’s left elbow condition has been settled with surgery but being a degenerative change originally, she is prone to recurrence over time.  She is now avoiding forceful actions in the garden which probably contributed to the pain in the first instance, although there never was any specific trauma”.

27.     Dr Douglas, under cross-examination, stood firmly by his opinion that the condition of the applicant was a degenerative one.  Dr Douglas referred to evidence from previous types of studies which suggested that, as people get older, “the likelihood of finding degenerative changes in the elbow increases greatly as so, on the balance of probabilities, the condition is of a degenerative nature”. 

28.     Dr Douglas, in cross-examination, also stated that in his view the work of the applicant did not cause any problem.  Dr Douglas remarked when responding to one of the applicant’s questions: “according to the history, you were doing basic duties and one day you had pain and the previous day you didn’t”.  Dr Douglas also stated that “there was no history of abnormal or extraordinary work conditions”.

29.     Dr Douglas, in answer to a question by the medical member of this Tribunal, stated that it was beyond his expertise to discuss how the degenerative changes in the elbow actually commence.  Dr Douglas remarked that all he could do was report on the findings that there is evidence that there are degenerative changes in the soft tissue around the elbow as people age.  In this context, Dr Douglas referred to examination of cadavers, biopsies as well as pathological and radiological studies.

Dr Morris

30.     Dr Morris, in his report of 5 February 2008, had expressed the view that lateral epicondylitis was the appropriate diagnosis of the condition of the left elbow of the applicant.  Dr Morris expressed the view that the type of work undertaken by the applicant does not produce a lot of stress on the left elbow.  Dr Morris opined that it was unlikely that her employment caused the problem.

31.     Dr Morris reviewed the applicant after she had her operation in the Philippines in July 2008.  Dr Morris, in his report of 7 October 2008, had again expressed his opinion that the left elbow condition of the applicant was a degenerative condition.  Dr Morris had concluded that the symptoms were caused by activities at work and at home but that the condition originated in a hypoxic condition of the tendon.

32.     Dr Morris compiled a supplementary medico-legal report on 20 January 2009 in which he reviewed the medical evidence relating to the applicant.  Dr Morris again expressed his opinion that the appropriate diagnosis of the applicant was a left lateral epicondylitis.  He again reiterated his opinion that the injury did not arise out of or in the course of the applicant’s employment.  He expressed his opinion that the lateral epicondylitis was caused by degeneration in the extensor carpi radialis brevis tendon.

33.     In his evidence, Dr Morris confirmed that the history that he has recorded in his first and second reports was provided orally by the applicant.  Dr Morris confirmed that there was a variance in the information which was provided by the applicant.  In his first report, Dr Morris had reported that the applicant had told him that on the day in question when she first experienced pain she had woken up with pain.  In his second report, Dr Morris mentioned that the applicant had later informed him that she had noted pain in her left elbow after two hours work.

34.     Dr Morris was subjected to considerable cross-examination by the applicant.  He remained firm in his opinion that the origin of the lateral epicondylitis condition was a degenerative condition of the extensor carpi radialis brevis tendon.  Dr Morris has mentioned his considerable experience in removing degenerative tissue in lateral epicondylitis cases.

35.     The Tribunal asked Dr Morris to review the operative record of Dr Pili MD who performed the lateral epicondylitis operation.[5]  Dr Morris confirmed that there was consistency between the literature that he relied upon[6] and the operative notes of Dr Pili.  Dr Morris confirmed that the operative findings from the Davao Doctors Hospital which referred to “granulation tissue”[7] was consistent with the presence of degenerative tissue.

[5] Exhibit K

[6] TI, fol 55 (article by Dr Brett Owens MD on “Lateral Epicondylitis”); T1, fol 42 (article by Dr Vincent Disabella on “lateral Epicondylitis”).

[7] Exhibit K

Dr Haynes

36.     Dr Haynes, in his report of 2 February 2009, detailed his assessment of the applicant which occurred on 28 January 2009.  Dr Haynes had reported that the applicant had undertaken treatment in regard to the epicondylitis and her current complaints of pain are not consistent with ongoing organic pathology.  Dr Haynes concluded that he did not believe that the applicant required any further specific medical treatment in regard to the left elbow.

Dr Buckland

37.     Dr Buckland, in his report of 10 November 2008, had reported that the applicant had stated she was happy with the surgery in the Philippines and that the pain had decreased in her left elbow since the operation though she was still unable to lift with her left arm.

Davao Doctors Hospital

38.     During the hearing we thought that it was important to find out whether there was any evidence which would support the submission of the applicant that her work made a contribution to the condition.  The applicant had tendered copies of the medical records of her operation from the Davao Doctors Hospital which was admitted into evidence[8].  These records do not contain the results of any pathology tests.

[8] Exhibit I

39.     As the applicant was not legally represented we thought it appropriate to give the applicant the opportunity to contact the Davao Doctors Hospital to ascertain whether that hospital was in possession of any pathology report, histology report or whether there was a microscopic examination of the tissue that was removed during her operation.  We took this course of action as any pathology or histology report may confirm that the material that was removed could contain tears rather than be degenerated tissue.  As the hearing of this application had be adjourned because of the unavailability of two witnesses (Dr Morris and Ms Glover), we asked the applicant to find out if a biopsy was taken of any tissue that had been removed.  However, we have been advised that no pathology or histology test had been undertaken by the hospital.

CONCLUSION

40.     The specialist medical evidence certainly does not support the applicant’s claim for compensation.  We have relied upon the evidence of Dr Douglas and Dr Morris who are of the opinion that the left lateral epicondylitis condition is a result of a degenerative condition.  The evidence of these specialist practitioners is that there is no causal connection between the left lateral epicondylitis condition and the employment of the applicant.  These senior specialists maintained their opinion under extensive cross-examination by the applicant.  We appreciate that Dr Griffin is of a contrary opinion and he has put forward the hypothesis that the condition of the applicant is contributed to by the work environment.  However, we do not consider that any probative evidence has been placed before us in support of that hypothesis.

41.     We have been mindful of the amendments effected by the Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth). Section 5B of the Act defines a disease to mean an ailment suffered by the employee or an aggravation of such ailment that was contributed to in a significant degree by the employee’s employment by the Commonwealth.

42.     We considered that there is no probative evidence that the condition of the applicant was contributed to in a significant degree by the employee’s employment with the Commonwealth. 

DECISION

43.     We affirm the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member and Dr Morley, RFD, Member

Signed: ...........................[Sgd]..................................................
              Kate Slack, Research Associate

Date/s of Hearing  10 November 2009 and 17 March 2010
Date of Decision  17 May 2010
Applicant was self-represented  
Counsel for the Respondent     Scott McLeod
Solicitor for the Respondent     Leisa Pendle, Australian Government Solicitor