Milevska and Comcare (Compensation)

[2017] AATA 1177

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2015/6799
GENERAL DIVISION  )

Re: Tranda Milevska
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:               Deputy President Bernard J McCabe

DATE:   5 September 2017

PLACE:                     Perth

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that the reference to “8 February 2017” in paragraph one of the decision is replaced with “12 December 2015”.

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

Deputy President

Milevska and Comcare (Compensation) [2017] AATA 1177 (31 July 2017)

Division:                  GENERAL DIVISION

File Number(s):      2015/6799

Re:Tranda Milevska

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:31 July 2017

Place:Perth

1. The reviewable decision of 8 February 2017 in relation to the Applicant’s wrist condition isset aside.

1. In substitution, the Tribunal decides that the Respondent is liable to pay compensation in respect of the Applicant’s wrist condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

1. The reviewable decision is otherwise affirmed.

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

Deputy President Bernard J McCabe

CATCHWORDS

WORKER’S COMPENSATION – whether aliments constitute an injury suffered by an employee – consideration of the nature of shoulder, elbow and wrist conditions – whether applicant suffers from one or more diseases – whether the applicant’s employment has significantly contributed to or aggravated any disease(s) – whether the applicant condition(s) are an injury or injuries that arose out of or in the course of employment – decision set aside in part

LEGISLATION

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

REASONS FOR DECISION

Deputy President Bernard J McCabe

31 July 2017

1. Ms Tranda Milevska has developed symptoms in her shoulder, elbow and wrist. She says the condition (or perhaps conditions) that produces these symptoms is connected with the work she was doing as a Centrelink employee. She has sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act). Comcare, the respondent, has denied liability under s 14 of the Act. Comcare says there is no connection – or no sufficient connection – between Ms Milevska’s condition(s) and her work.

2. There was some dispute over the precise details of Ms Milevska’s work practices. She was an administrative officer who performed a good deal of keyboard work and some stapling of documents. But how much?

3. There was also disagreement amongst the medical experts. The disagreement was partly about diagnosis, although the applicant’s counsel pointed out it was not essential that I reach a detailed view on diagnosis if I was satisfied there was a condition. The real dispute between the experts lies at the heart of this case: can repetitive activities like typing and stapling trigger symptoms in the arm and shoulder?

4. A debate over the cause – or existence – of repetitive or overuse injuries has been raging within the medical profession for decades. The debate is powered by different philosophies of diagnosis and treatment within the profession. Those different philosophical approaches were on display during the course of the hearing. Comcare’s experts claimed to espouse what is usually known as an ‘evidence-based’ approach in which published studies, guidelines and other scientific literature were the touchstone of validity. Dr Cairns, the respondent’s principal witness at the hearing, was the most striking (and dogmatic) adherent of this approach. The applicant’s experts pointed to their clinical experience as the basis for their opinions. The expert rheumatologist, Dr Edelman, was the most stringent exemplar of this approach. He was aggressively dismissive of published studies and guidelines.

5. I am not likely to resolve this medical controversy, not least because it is inappropriate for me to tell medical practitioners or the medical profession as a whole how they should go about their professional work. But nor do I need to do so for present purposes. My task is different. I must establish the facts and determine whether there is a causal connection between the applicant’s employment and her medical conditions that satisfies the requirements in the Act. I am not trying to treat Ms Milevska. I am trying to work out whether she is entitled to compensation. That is a legal question, even if medical evidence is relevant to the answer.

THE APPLICANT’S WORK HISTORY

1. Ms Milevska is a right-handed, middle-aged lady. She gave evidence at the hearing and provided two statements (exhibits 4 and 5). The applicant said she has worked for over 30 years as a customer service officer at Centrelink, which now forms part of the Department of Human Services. She has been working reduced hours since 1995 when she returned from maternity leave. Most recently, she has worked in the compliance team which reviews information provided by customers against data obtained from the Australian Tax Office and information gleaned from employers. I am particularly concerned with what work she did and how she did it between late 2012 and 2016 when the symptoms emerged. (I am not considering the impact of a separate work-related incident in an elevator that occurred in early 2017. A claim arising out of that incident is not before me.)

2. There was no dispute that Ms Milevska’s role required her to enter data into the computer and to take computerised notes during telephone conversations with employers and others who might be contacted to verify or provide information. In exhibit 4 (at [10]), she explained the work involved in her role as follows:

   The CSO [Customer Service Officer] work that I do is a combination of telephone work (inbound & outbound calls) and computer typing work. It also entails substantial printing of correspondence to be stapled and enveloped to customers and employers.

3. In her oral evidence, the applicant confirmed she did not routinely lift heavy objects at work. The applicant said she occasionally – perhaps once a week – carried a ream of paper if the photocopier needed to be resupplied while she was using it. On some of those occasions, she had to lift an individual box containing several reams of paper. On a few of those occasions – in other words, infrequently – she would have to lift one of the boxes from where it was stacked in a storage area. If the person responsible for ordering and receiving the photocopying supplies had recently restocked, the boxes might be stacked above shoulder level.

4. The evidence does not establish the applicant routinely, or even frequently:

   ·carried heavy loads at work; or

   ·lifted any loads at shoulder height or above in the office.

5. Ms Milevska said she did use a stapler to fasten together documents she had compiled. In her oral evidence, she explained she did not use an electronic stapler. (She said there was an electronic stapler available at one stage but she used a manual stapler in recent years.) The applicant said she might staple letters of 2-3 pages in length, although she was occasionally required to staple bundles that might be as large as 50 pages. She agreed in cross-examination that she stapled the documents as they came to hand on occasion throughout the day; she did not normally accumulate bundles of documents that were stapled in quick succession which would require repetitive movement.

6. Using a manual stapler involves the application of some force in a gripping motion, or the application of modest downward force through the wrist. There was a small amount of repetition, but the evidence provided by or elicited from the applicant does not suggest stapling was an intense or constant feature of her work. A similar observation could be made about the insertion of documents into envelopes for despatch to employers and others. The evidence suggests the work involved movement of the hand and arm but it was not constant, intense or especially repetitive and did not involve the exertion of significant or even moderate force through the wrist or arm.

7. The keyboard work is of particular interest for present purposes. Ms Milevska said she used a conventional keyboard throughout the relevant period. She used several different computer mouses over time. The evidence does not suggest she had to place her hand or wrist in an awkward position to use the mouse with her right hand. It was not seriously contended that she had to extend her arm in a way that involved significant flexion or abduction of the shoulder; while the applicant was reluctant to concede during cross-examination that she was not required to adopt an awkward posture in the course of her work, the evidence does not justify a finding that she was required to do anything unusual or uncomfortable with the mouse. I am also satisfied from Ms Milevska’s evidence that she did not have to extend her arm or wrestle with a handset when operating the phone. She wore a headset and operated the phone by touching keys on the keyboard.

8. The extent of Ms Milevska’s keyboard work – in particular, the extent to which her work involved repetition – was more contentious. In the course of cross-examination, the applicant said she was able to touch-type and that she used her keyboard throughout the working day. She explained she would:

   ·make notes on the computer during the telephone calls she would place to employers. The notes were in narrative form, recording important details from the call. Some of the calls might be as short as a few minutes, while other calls might run for up to half an hour, she explained in her oral evidence.

   ·make entries into the dialogue boxes in the various computerised tools she was required to use. Both of the main tools used drop-down boxes which required the applicant to enter data; some of the data might be cut and paste from other documents.

9. The applicant does not suggest she typed continuously throughout the day the way she might have done if she were copy-typing. The intensity of the work varied throughout the day in response to the specific task she was performing. There seemed no doubt on the evidence before me that the applicant did keyboard work regularly throughout the day.

10. Ms Milevska said in her oral evidence that the intensity of her work increased after changes were introduced in the workplace during the relevant period. One change involved a new approach to file management. Officers were no longer expected to complete discrete tasks on a file as directed; they were instead required to complete essentially all of the tasks on the file before it was handed back: exhibit 4 at [29]. It was not clearly explained how this might increase the workload, but one might reasonably infer the changes were introduced to increase efficiency. New information packages on the computer were also introduced. The applicant said there were teething problems with some of the new software. Screens would freeze and data would be lost. It was often necessary to re-enter data although she said no allowance was made in the team’s targets for the loss. She claimed in her oral evidence that the team was still expected to finalise the same number of matters, so the workload on individuals necessarily increased.

11. I had some difficulty with the applicant’s oral evidence. She tended to offer discursive answers to questions in cross-examination.  I am not suggesting she was consciously evasive, but she was difficult to pin down on details. For example, the applicant resisted giving a direct answer to a straight-forward question in cross-examination about a special chair she used and whether she was able to move it around without aggravation. When Ms Dowsett (who appeared for Comcare) asked whether the applicant had read the T documents, the applicant offered a lengthy explanation rather than a binary one.

12. Comcare relied on evidence provided by Ms Vanessa Strahan, the team leader in the Customer Compliance Branch of the office where Ms Milevska worked. Ms Strahan explained in her statement she was Ms Milevska’s supervisor “on and off since about 2012, and as such, [she had] a good…understanding of [the applicant’s] role”: exhibit 9 at [2]. Ms Strahan referred in her evidence to a ‘job statement/task analysis’ document which is reproduced in exhibit one at pp 58ff.

13. Ms Strahan said in cross-examination that Ms Milevska made between 5-10 calls each day when working full time. The applicant was working on a reduced basis for part of the relevant period because she was in the process of returning to work after earlier injuries. She was required to complete 2.4 reviews per week; she gradually increased that load over time to approximately 5 reviews. When questioned more closely, Ms Strahan said each review would involve at least two calls, although there could be more. She said the calls could range in length from a few minutes to over 30 minutes. She said the work did not involve constant typing. There was a requirement to read and analyse the information as well.

14. Ms Strahan said she was not aware of widespread problems with one of the software packages described by Ms Milevska, although Ms Strahan acknowledged there was a ‘glitch’ in one application over a six-month period in 2014 when data was not being saved correctly. She said the problem was intermittent in nature and did not affect all staff: exhibit 9 at [8]. She said in cross-examination that she was unaware of union complaints about the workload associated with software problems. She denied there was a significant increase in workload associated with changes to software. She said the new software was designed to facilitate data entry so fewer keystrokes were required to enter the same information.

15. It is difficult to know how much of an impact the software glitches had on the applicant’s workload. I have no reason to doubt the applicant’s claim there was a problem with the software that meant the team had to play catch-up, which led to some extra work for the team – although Ms Strahan’s evidence suggests any increases in the workload did not fall especially heavily on the applicant. Indeed, Ms Strahan indicated the applicant was one of her less efficient team members.

16. Ms Strahan did not independently analyse the work of the applicant to determine the number of key strokes required or make formal estimates of the intensity of the work. She conceded her immediate knowledge of the task was limited to what she observed of members of her team in action. She relied on the ‘job statement/task analysis’ document that was generated by officers in the Department’s human resources’ section in Canberra. (The applicant worked in faraway Perth.)

17. The analysis document includes a detailed break-down of the work performed by a person in that position. The analysis set out what was required of the applicant and the circumstances (including the equipment provided) in which she performed the role. The analysis includes a note that says the applicant was able to:

    …do micro pauses, stand and walk around in the vicinity of their desk while on a call due to the flexibility of the headset cords. Service Officers have the opportunity to get up and walk to the printer as required. This would be mostly when finalising a customer telephone interaction. Rostering includes postural stress breaks and Learning and Development time: exhibit one at p 60.

18. The document provides more detailed analysis of the extent of upper limb use: exhibit one at p 64. It says: 

    ·Keying/ Data Entry: 35 words per minute.

    ·Each Call requires approximately 200 to 250 keystrokes in order to enter data and navigate system screens and send required correspondence following customer contact.

    ·Data entry is intermittent but can be for sustained periods; System aids called “macros” “fast notes” and “scripts” are available to automate text and data entry to minimize keying and mouse requirements. Doc templates are also required to be copied and pasted into customer records to ensure the quality measures for Doc minimum standards are met.

    ·Frequent use of mouse required to navigate screens during calls. Alternative key stroke actions are available for most mouse driven actions

    ·Occasional photocopying of customer information

    ·Job requires frequent use of telephone (headsets are available to staff)

    ·Writing is minimal, small amounts required

19. That evidence was not explained or proved by an expert. The authors of the analysis were not called to give evidence. Ms Strahan was not in a position to establish the accuracy of what was contained in the document. It is difficult to know what I should make of estimates like the precise number of keystrokes required to complete a task or the number of words typed per minute. Having said that, the thrust of the evidence was essentially consistent with the evidence provided by the applicant – namely that she used the keyboard regularly throughout the day.

20. I am satisfied the observations I have set out above accurately summarise the evidence about the applicant’s work, albeit there remains some doubt over precisely how many keystrokes are required to complete particular tasks. I am satisfied the applicant used the keyboard on a regular basis throughout the day even if she did not use it constantly or at a consistent tempo. I am satisfied the keyboard work was moderately repetitive, in the sense it was, to some extent, intermittent. (Taking notes of an oral conversation requires one to type at a reasonable pace, and Ms Milevska had touch-typing skills. That evidence tends to support the conclusion the work was moderately repetitive although there were also likely to be ‘micro pauses’ that reflected punctuation in the conversations on the phone, even if the intensity of the work was higher.) It is unclear how much force was applied as she typed. There is no evidence to suggest the applicant typed with unusual force (it did not appear she was a ‘rage typist’) although I was not provided with a detailed estimate of how much force the applicant (or indeed any typist) typically applied to the keyboard when typing.

21. The level of generality in those findings does not appear to be a problem in the circumstances of this case because of the approach taken by the various medical experts. Crudely speaking, the applicant’s case is that relatively low levels of repetitive movement could cause some or all the damage seen here, whereas Comcare’s experts tended to say much more intense and forceful repetitive activity would be required before any damage would be done.

THE ONSET OF SYMPTOMS

1. The applicant said she experienced discomfort in her wrists in November 2012. She was given some advice about posture and other strategies to cope with discomfort: exhibit four at p 4. She began to experience symptoms in her right elbow on or about 21 October 2013. She went to see her general practitioner, Dr Wong, who explained in his oral evidence that the applicant presented with pain in her elbow, forearm and hand. She lodged a workers’ compensation claim at the time but she noted in her statement that the rehabilitation case manager assigned to her agreed the matter would be handled through an ‘early intervention programme’: exhibit 4 at [13]. Under that program, the applicant was treated by an occupational therapist. Her treatment included an elbow brace that she used at work. The final appointment with the therapist was on 9 January 2014 but the applicant said she continued to use the elbow brace: exhibit 4 at [17] – [18].

2. Ms Milevska said she began to experience symptoms in her right shoulder in late 2014. She did not get any relief when she took holidays at the end of the year and in January 2015. In her statement, she said her shoulder became “really sore” in May 2015: exhibit 4 at [24]. She said in her statement that the pain had become “more of a burning feeling”: exhibit 4 at [80]. On 23 May 2015, the applicant told her supervisor that she would need to “go a bit easy” in light of her shoulder symptoms: exhibit 4 at [24]. She said she lodged an incident report. She saw Dr Wong on 26 May 2015 and obtained a medical certificate which referred to “right upper limb straining injuries – increasing pain in the right hand, elbow and shoulder from the work duties”: exhibit one at p 32. (Interestingly, Dr Wong issued another medical certificate on the same date which referred only to “[right] shoulder straining injury from work”: exhibit one at p 33. Ms Milevska explained in her statement that she was asked to provide the other, more detailed certificate: exhibit 4 at [28].)

1. The applicant said in her statement that she attributed the onset of shoulder symptoms to the increases in workload that occurred when the process for allocating work changed and the software glitches were occurring. She said she was required to do more keyboard work as a result of the changes: exhibit 4 at pp 7-9.  The applicant says the increased workload took a toll on her health.

2. Ms Milevska was off work because of her symptoms in the remainder of May and in June and July 2015. The periods were covered by medical certificates provided by Dr Wong. The certificates referred to right upper limb straining injuries but some certificates reproduced in exhibit one were more detailed than others. I note Dr Wong’s clinical notes were also reproduced in exhibit one; the certificates appear to be consistent with those notes.

3. The applicant was directed to return to work at the end of July 2015. She commenced on reduced hours. She had a further period off work after 15 September when she had surgery in respect of the carpal tunnel condition. When she returned after a six-week absence, she slowly increased her workload to 32 hours each week. In January 2016, she was involved in a separate accident. That accident and the events in the workplace which followed are not relevant for present purposes.

THE MEDICAL EVIDENCE

1. That brings me to the opinions offered by the various doctors. The applicant called three medical practitioners to give evidence at the hearing. I was also provided with other reports which were broadly consistent with the views offered by the experts called to give oral evidence.

2. The first witness was Dr Wong, a general practitioner. Dr Wong has been treating the applicant since 1989. Dr Wong’s medical certificates, progress reports and clinical notes were reproduced in exhibit one. During cross-examination, he was unable to explain how repetitive movements like those discussed in this case could result in shoulder symptoms. He said the repetitive movements caused the carpal tunnel condition: he referred generally to studies that suggested a causal connection but was unable to cite any particular studies in support of his conclusion. He said the epicondylitis (tennis elbow) was also the product of repetitive movement although he agreed he would ordinarily expect that would require repetitive forceful movements.

3. Dr Edelman was the principal expert called by the applicant in support of her case. Dr Edelman has practised as specialist rheumatologist for 32 years. He said he routinely deals with cases of inflammatory joint disease. He said he regularly saw cases of carpal tunnel syndrome and epicondylitis. He examined the applicant in 2016 after the incident in January that year which is not directly relevant for the purposes of these proceedings.

4. Ms Dowsett, for Comcare, questioned Dr Edelman in some detail about the history he took and the scope of the physical examination. He acknowledged he did not ask detailed questions about the number of key strokes involved in the applicant’s work or the amount of force that she applied as she typed. There was no suggestion she gave a history of using her arms at an awkward angle or lifting heavy objects or working at head height.

5. Interestingly, Dr Edelman opined during cross-examination that the shoulder pathology evident on the radiological imaging was not the cause of the applicant’s upper limb discomfort. He acknowledged the imaging disclosed bursitis in the right shoulder but he said that did not necessarily involve impingement. He attributed the shoulder problems to muscular tightening that was part of a right sided occupational pain syndrome. He said the carpal tunnel symptoms and the elbow problems were all features of the same, connected occupational pain syndrome.

6. Dr Edelman acknowledged the syndrome was poorly understood. He said he could not definitively explain the patho-physiological phenomena but insisted there was a causal connection – and he noted there was no other explanation for the symptoms. He said he was unfamiliar with guidelines published by the American Medical Association (the AMA Guidelines) that were supposedly in common use, but added guidelines were of little value. (The relevant extracts of the AMA Guidelines are reproduced in exhibit 11.)

7. Dr Edelman said he was generally aware of studies exploring the connection between repetitive work and symptoms like those experienced by the applicant, but he was not aware – and did not accept – those studies established repetitive activity was only problematic when it was forceful and when it occurred at awkward angles. Dr Edelman insisted that, in his clinical experience, symptoms could emerge as a result of the routine use of a keyboard. He said the conditions in the forearm and elbow were the product of a thickening of the tendons. The thickening could be caused by a variety of factors which might be present and interact in ways we do not understand. He insisted more moderate use of a keyboard and mouse could lead to the constellation of symptoms he described. He was satisfied the applicant’s weight, gender or mental health did not explain the onset of the constellation of symptoms in this case.

8. Importantly, Dr Edelman opined in cross-examination that the various symptoms should be seen as part of a wider syndrome. He said the carpal tunnel pathology was evident but it was wrong to treat this as a case of carpal tunnel syndrome in isolation from the other symptoms in the arm and shoulder. They were all connected. He could not explain how.

9. Dr Edelman gave his evidence in a dogmatic fashion. I have already noted he was dismissive of Comcare’s reference to published studies and the AMA Guidelines. He was convinced he was right in his conclusions about the applicant based on his extensive clinical experience.

10. Dr Jenkins also gave evidence at the behest of the applicant. Dr Jenkins is a general practitioner but he has extensive experience in dealing with workplace injuries. He attributed the applicant’s symptoms to extensive keyboard work. He suggested there was a constellation of symptoms in the wrist, elbow and shoulder that should be regarded as a right upper limb overuse injury. As I understood his evidence, his diagnosis was essentially the same as that offered by Dr Edelman notwithstanding the minor differences in language.

11. Dr Jenkins agreed it was uncertain if the shoulder pathology that showed up in the radiological studies explained the shoulder symptoms reported by the applicant. Indeed, he suggested in cross-examination that he had some doubt as to whether the change in the elbow was in and of itself a real source of difficulty. He ventured that the applicant’s overuse led to carpal tunnel symptoms which then triggered neuropathic pain radiating up and down the forearm. 

12. Dr Jenkins recalled a history of the applicant engaging in reasonably intense and repetitive activity over a sustained period each day. He did not resile from his opinion that the workplace activities were the likely cause of the onset of symptoms in the wrist and forearm, elbow and shoulder after it was suggested to him in cross-examination that the applicant might have engaged in repetitive activity at a lower tempo. He did a better job of identifying a chain of causation than Dr Edelman: Dr Jenkins hypothesised the trauma associated with the repetitive activity generated neuropathic pain, and it was the neuropathic pain that was the real issue in this case. But Dr Jenkins conceded in cross-examination that it was almost impossible to definitively establish the cause of symptoms in circumstances like this. He accepted there were studies showing forceful, highly-repetitive activity at awkward angles could contribute to the development of carpal tunnel symptoms but he insisted the absence of studies showing a causal relationship between the condition and more routine, lower tempo activities does not mean there was no connection. Like Dr Edelman, he relied on his extensive clinical experience of individuals complaining of overuse injuries as the basis for his conclusions. He expressly and emphatically rejected the suggestion that the applicant’s psychiatric state or any other factor provided an explanation for her condition.

13. Comcare relied in particular on the evidence of Dr Cairns, a consultant orthopaedic surgeon. Dr Cairns provided a written report (exhibit 10) and gave oral evidence by telephone at the hearing. He explained in cross-examination that he doubted whether there was such a thing as an ‘overuse injury’. He accepted specific disorders might develop in response to repetitive work in some circumstances, but he denied any of those circumstances were present in this case. He said he relied in particular on the occupational risk factors identified in the AMA Guidelines. Those risk factors were not present in this case, he opined, although other (non-work-related) factors such as the applicant’s age, weight and gender might be an issue. He defended the AMA Guidelines against suggestions from Mr Bruns, counsel for the applicant, to the effect that the AMA Guidelines were effectively biased against applicants. Dr Cairns said the clinical discussion in the AMA Guidelines was balanced and thorough, and he pointed out that the Guidelines referred to the comprehensive literature available on the topic.

14. Dr Cairns rejected suggestions that his examination of the applicant was rough or cursory. Dr Cairns also denied there was anything wrong with him relying on the history gathered by Dr Mattes, a colleague who was well-known to him, for the purposes of preparing his own report. Dr Cairns said he knew Dr Mattes always took a careful history. I was not entirely comforted by that explanation: the history is critically important to the diagnosis and opinion in a case like this one. Taking the history is a central part of the specialist’s role. Since, crudely speaking, the opinion is usually only as good as the history, I am justified in attaching less weight to the opinion of an expert who defers to the history gathered by another.

15. Dr Cairns said carpal tunnel syndrome was idiopathic in origin but he reluctantly conceded the AMA Guidelines admitted the possibility that environmental factors might play a role in onset or aggravation. He went on to say he doubted the workplace made such a contribution in this case.

16. I have already mentioned Dr Cairns gave his evidence in a dogmatic way. He appeared to be inflexibly wed to his view.

17. Dr Meyerkort also gave evidence at the request of the respondent. Dr Meyerkort is a consultant occupational physician with experience in environmental medicine. His evidence was more balanced than the evidence provided by Dr Cairns. He opined it was necessary to address each condition separately. He did not agree with the approach of Dr Edelman and Dr Jenkins that treated the constellation of symptoms as a syndrome. Dr Meyerkort did not dispute it was possible the various conditions might be causally linked, but insisted it was necessary to establish that causal link in each case rather than taking what he appeared to regard as a diagnostic short-cut of accepting the conditions were a syndrome because they commonly presented together.

18. Dr Meyerkort essentially agreed with Dr Edelman that the applicant’s shoulder condition was caused by tight muscles, not because of any of the changes evident in the imaging. He also rejected the possibility of the elbow-condition being work-related. He said he was unable to identify a mechanism of injury that might connect the repetitive activity to the onset or aggravation of the elbow condition. He did concede the applicant’s working environment may have contributed to the onset of carpal tunnel syndrome. He was aware of the AMA Guidelines and gave the impression they offered a more balanced analysis than the one suggested by Dr Cairns. Dr Meyerkort acknowledged overuse might involve micro-trauma that caused swelling and a thickening of the tendons in the wrist. He added it was possible the wrist and elbow might be connected to each other as a consequence of overuse. But he said that would only occur where the activity in question included strong gripping and the exertion of force that involved both joints, such as using a chainsaw. He said there was no evidence of that occurring here.

19. The respondent’s other principal medical specialist was Dr Paul Psaila-Savona, an occupational physician. Dr Psaila-Savona was persuaded there may have been a connection between the applicant’s wrist and elbow conditions and her work. In his report of 16 June 2016, he speculated there may be a connection between those conditions and the aggravation of the shoulder condition. But in that report, he repeated his concern about “the difficulties encountered in ascribing causation to the type of injuries suffered by Ms Milevska.”

20. I will return to the medical evidence below.

THE LAW

1. Section 14 of the Act provides Comcare will be liable for an injury suffered by an employee. (I should say at once there is no doubt the applicant was an employee at all material times.) The word injury is defined in s 5A of the Act, although s 5B is also potentially relevant. Section 5A(1) says injury includes:

   (a)a disease suffered by an employee (disease is defined in s 5B);

   (b)a physical or mental injury other than a disease ‘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 even if the original injury is not work-related so long as the ‘aggravation arose out of, or in the course of, that employment’.

2. The distinction between injury simpliciter (that is, a physical or mental injury other than a disease) and a disease may have consequences in a case like this because the tests for causation are different. The expression disease is defined in s 5B(1) to include an ailment, or the aggravation of an ailment, ‘that was contributed to, to a significant degree, by the employee's employment’.

Does the applicant suffer from injuries or a disease?

1. The applicant says all three of her conditions are injuries simpliciter within the meaning of s 5A. She says the injuries arose out of, or in the course of her employment. In the alternative, she argues one of more of the conditions were aggravated and the aggravation arose out of, or in the course of her employment.

2. Treating the conditions as an injury or injuries does not sit comfortably with the diagnosis that was pressed by the applicant’s medical experts. They referred to an overuse syndrome that explains the constellation of symptoms without identifying a clear mechanism of injury for each of the conditions. While the references to micro-trauma resulting in thickening tendons in the wrist bear the hallmarks of injury in the sense that external forces are applied to the tissue or structure leading to an observable physiological reaction, Dr Edelman in particular preferred to explain the condition as the body’s response to overuse in a more general way rather than as a series of individual injuries. Dr Jenkins, for his part, says there was a wrist condition but suggested the observable changes in the elbow (and, I infer, the shoulder) were less of an issue than was neuropathic pain that emerged in connection with the wrist condition. The discussion of neuropathic pain was interesting and potentially worthy of further investigation, but it was not pursued.

3. I should add the preponderance of the medical evidence suggests the shoulder condition in particular would not amount to a physical injury in any event. Dr Edelman’s evidence is that the applicant’s shoulder problems are not caused by the observable changes on the imaging studies. Those physiological changes are a red herring, in his view. He attributes the symptoms which cause the discomfort to muscle tightness. Dr Meyerkort agrees. Muscle tightness would not ordinarily be regarded as an injury for present purposes because there is no evidence of physiological change.

4. I am also not persuaded that muscle tightness would qualify as an ailment or disease if considered in isolation. But putting that to one side, if the constellation of symptoms was regarded as a disease described as an occupational overuse syndrome with symptoms in the wrist and elbow and upper arm, could I conclude the employment made a significant contribution to the onset or aggravation of that ailment? 

5. Dealing with the constellation of symptoms forming part of a syndrome on the basis it is a disease creates problems for the applicant. Even if I accept the applicant’s medical evidence that overuse in the workplace made a contribution to the onset of the syndrome, and that the syndrome is a disease, it is impossible to be sure the workplace made a significant contribution precisely because the doctors were unable to specify the nature of that contribution. It is one thing to say overuse makes a contribution to the onset or aggravation of the condition without being precisely sure how that occurs; it is another thing to say the contribution is significant because that would require the contribution to be measured against other factors which might also play a role. If I cannot be sure how the contribution is made, I will have difficulty concluding the contribution is significant relative to other possible causes.

6. The situation does not improve for the applicant if the elbow condition is evaluated as a discrete disease. Even if I accept the repetitive work made a contribution to the onset or aggravation of symptoms in the elbow, none of the experts was able to explain precisely how that occurred – which makes it almost impossible to complete the assessment of relative significance of contribution. I would add it is unclear from the medical evidence whether the physiological changes identified in the imaging adequately explained the symptoms the applicant experienced. Dr Jenkins, for example, said the physiological changes in the elbow were not the real issue. He said the problem was neuropathic pain that somehow arose in connection with the wrist condition.

7. Treating the elbow condition as an injury does not leave the applicant any better off. The applicant’s experts were not able to adequately explain the causal connection between the repetitive work and the development or aggravation of symptoms in the elbow. The applicant’s experts speculated on a connection. Dr Edelman in particular based his view on clinical observation. But the research into the causal connection was lacking. Further research might establish the speculation was well-founded. For now, the state of the medical evidence does not justify making a finding of a causal connection between the elbow condition and the applicant’s employment for the purposes of the Act.

8. That leaves only the wrist condition, which I am satisfied should be treated as an injury. Dr Cairns says the condition is not connected to the workplace, but I have already concluded his evidence dogmatically excluded the possibility whereas the published work is more equivocal. Dr Meyerkort says the wrist condition could be causally connected: he accepted the micro-trauma involved in repetitive work might lead to swelling and a thickening of the tendons in the wrist. Indeed, in his report of 3 June 2016, he confirmed his opinion “that it is reasonable that Ms Milevska’s right wrist symptoms are attributable to her workplace activities”: Exhibit 12 at pg 2. Dr Meyerkort’s evidence on this point is consistent with the preponderance of medical opinion provided in these proceedings. A mechanism of injury was identified in relation to this condition. The repetitive micro-trauma were apparently enough to generate a physiological change in the wrist, even if the applicant was not working in awkward positions or applying significant force or working at the level of intensity that she initially claimed.

9. I am satisfied the medical and other evidence establishes the applicant’s wrist condition arose out of, or was connected with her employment. The causal connection between the applicant’s workplace and her other conditions remains speculative.

CONCLUSION

1. The reviewable decision with respect to the applicant’s wrist injury is set aside. I find in substitution that Comcare is liable under s 14 with respect to that injury. The reviewable decision is otherwise affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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

Associate

Dated: 31 July 2017

Dates of hearing:	3 April 2017 to 6 April 2017
Counsel for the Applicant:	Mr D Bruns
Solicitors for the Applicant:	JDK Legal Services
Counsel for the Respondent:	Ms C Dowsett
Solicitors for the Respondent:	Australian Government Solicitor