Mudaliar and Comcare (Compensation)
[2022] AATA 220
•16 February 2022
Mudaliar and Comcare (Compensation) [2022] AATA 220 (16 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1594
Re:Mrs Eveline MUDALIAR
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:16 February 2022
Place:Sydney
The decision under review is affirmed.
............................[SGD]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
COMPENSATION - entitlement to compensation - whether employer was liable to pay compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) - whether nature of employment caused condition, injury, or illness - whether condition is a result of natural aging or constitutional predisposition - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth).
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14.
CASES
Balacki and Comcare [2013] AATA 768
Comcare v Martin [2016] HCA 43
Commonwealth v Beattie [1981] FCA 88
SECONDARY MATERIALS
Eleonore Herquelot, Julie Bodin, Yves Roquelaure, Catherine Ha, Annette Leclerc, Marcel Goldberg, Marie Zins, Alexis Descatha ”Work-related risk factors for lateral epicondylitis and other cause of elbow pain in the working population” (2013) 56(4) Am J Ind Med 400-9
Karen Walker-Bone , Keith T Palmer, Isabel Reading, David Coggon, Cyrus Cooper “Occupation and epicondylitis: a population-based study”, (2012) 1(2) Rheumatology (Oxford). 305-10
Rahman Shiri MD, MPH, PhD (Senior Researcher) EiraViikari-Juntura MD, PhD (Research Professor): “Lateral and medial epicondylitis: Role of occupational factors”, (2011) 25(1) Best Practice & Research Clinical Rheumatology 43-57
REASONS FOR DECISION
Chris Puplick AM, Senior Member
16 February 2022
PROCEEDINGS
Mrs Eveline Mudaliar (the Applicant) commenced working for Services Australia in August 2005. In mid-June 2020 she claims that she noticed considerable pain and discomfort in both her elbows which she attributed to the nature of her employment. On 23 October 2020 she lodged a claim for compensation against Comcare (the Respondent) as the insurer for her employer.
That claim was rejected by Comcare on 18 December 2020 and that rejection was confirmed by a subsequent review of the decision on 12 March 2021.
In October 2021 the Applicant lodged an appeal with this Tribunal against that decision and the matter was heard on 1 February 2022. The hearing was conducted with the Applicant (self-represented) on the telephone and Counsel for the Respondent appearing on the Microsoft Teams Platform and in accordance with the Tribunal’s COVID19 protocols.
SUMMARY
In essence, the Applicant claims that the nature of her employment, which primarily involved using a mouse and keyboard to assemble extensive documentation[1] related to child support matters for submission to this Tribunal in the form of section 37[2] “T documents”, caused her to suffer with problems in each of her elbows.[3]
[1] Tribunal documents (T documents) at 171.
[2] Administrative Appeals Tribunal Ac 1975 (Cth).
[3] In her claim the Applicant refers to the right elbow issue as “golfer’s elbow” and the left as “tennis elbow”.
The Respondent’s basic position is that the Applicant’s condition is a result of the natural processes of aging and a “constitutional predisposition to tendinopathy”[4] in which the Applicant may indeed have experienced pain and discomfort as a result of undertaking her employment duties, but those duties were not themselves the cause of any underlying condition and did not give rise to any liability or compensable injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
[4] Report of Professor Neil McGill (13 August 2021) (McGill report) page [7].
As is common in such matters, there is medical evidence presented in support of both sets of claims and, at the end of the day, the Tribunal is required to determine which of the contradictory claims carries greater weight and to explain why it has reached such a conclusion.
APPLICANT’S COMPENSATION CLAIM AND EVIDENCE
In her original Worker’s Compensation Claim the Applicant provided the following information in support of her claim:
Are you claiming for a psychological injury?
I am not claiming for a psychological injury
If claiming for a physical injury or disease, which parts of your body are affected?
mainly both elbows but it affects my both hands with pain
What tasks were you doing when you were injured?
my usual duty which involves typing and mousing
What happened and how were you injured?
had to see doctor with this constant excruciating pain on both elbows which started feeling around June this year. then I was diagnosed the tennis and golfers problem - which has incurred due to repetitive movement an resting of hands while typing and mousing.[5]
[5] T documents at 154.
She reported that this problem was first noticed by her at 7.00 am on 11 June 2020.
The Applicant (under some understandable degree of stress) gave evidence to the Tribunal by telephone and was cross-examined in detail by the Respondent’s counsel. She agreed that she had suffered from pain in her elbows for many years and indeed that she had a long history of joint pain, involving not only her elbows but also her knees and wrists.
She stated that the level of pain and discomfort increased steadily over the period from mid-2020 onwards so much so that she found it difficult to undertake many of her regular household chores and activities which had, as a result, been taken over by her husband and children.[6] She agreed that when she had a break from activities the degree of pain subsided but only temporarily and that despite various forms of treatment, she had attained little relief and while the level of pain varied it remained consistently with her. She indicated that she was constantly reliant upon prescribed pain-management medication to assist her to cope on a daily basis and that sometimes the pain reached “excruciating” levels.
[6] Joint Tender Bundle at 54 (entry dated 22 October 2020),
The Tribunal was impressed with the directness of the Applicant’s answers and her openness about all aspects of her working environment and health-related issues.
APPLICANT’S MEDICAL HISTORY TO DATE OF CLAIM
In support of her claim the Applicant has submitted a number of medical reports,[7] primarily from her regular General Practitioner (Dr Thushanthi Wijeratne) and from a specialist sports physician (Dr Scott Burne).
[7] These reports were before and were considered by Professor McGill in the preparation of his report.
Medical records before the Tribunal indicate that in March 2014 the Applicant reported bilateral knee pains and in October 2014 multiple joint pain involving her wrists, elbows and knees.[8]
[8] Tender Bundle at 77-78 and 75.
On 24 November 2014 the Applicant undertook an ultrasound examination of both elbows and both wrists at Liverpool Diagnostics.[9] In relation to her elbows, the imaging report states:
ULTRASOUND BOTH ELBOWS
The common flexor and common extensor tendon origins defined normally bilaterally, without evidence of focal tear or tendonosis.
Mild hyperaemic change is noted at the left triceps insertion, indicating tendonosis. The tendon was intact. The right triceps tendon defined normally.
The biceps tendon appeared normal bilaterally. No joint effusion was seen on either side. CONCLUSION
Mild left triceps insertional tendonosis. The elbows appear otherwise normal.[10]
[9] She was referred by General Practitioner Dr Juan He. Ibid at 103.
[10] Ibid at 103.
On 9 December 2014 Mai Nguyen (Physiotherapist) provided a report on the Applicant to Dr He (a referring General Practitioner) in which she stated,
Mrs. Mudaliar presented on 8/12/14 …… complaining of a very long history of bilateral elbow and knee pains
and noting that she would be seeking further specialist investigations into her conditions.
The Applicant first lodged a claim related to pain in her wrists (“right wrist under my palm with bony part”) due to continuous mouse use on 19 December 2014.[11] There is no indication that this led, at the time, to any changes in the Applicant’s working environment or practices.
[11] T documents at 87-89.
There does not appear to be any recorded re-presentation by the Applicant to any of her medical practitioners specifically related to problems with her elbows until February 2019. On 12 February 2019 the Applicant made a further compliant at work about experiencing pain and discomfort in her wrists “while its rested on desk when moving mouse”.[12]
[12] Ibid at 89.
Following this, an ergonomic review of the Applicant’s workstation and equipment was undertaken, and various adjustments were made to both. The review focused upon the Applicant’s complaints about pain in her wrists.[13]
[13] Ibid at 94-103.
On 11 June 2020 the Applicant consulted her General Practitioner about bilateral elbow pain and obtained a medical certificate which references extensive keying and mousing activities. A further ultrasound assessment was arranged which showed “common flexor origin tendinosis (medial epicondylitis) in the right elbow and “common extensor origin tendinosis (lateral epicondylitis)” in the left.[14]
[14] Ibid at 285.
The Applicant reported further issues with her working environment on 21 July 2020 (date of incident being 15 July 2020), on this occasion describing, ‘Sharp pain on both elbows …. Tennis elbow/golfers elbow'[15] with “both” elbows being described as a site of pain and discomfort.
[15] Ibid at 91.
Another ergonomic evaluation was then commenced in August 2020.[16] As a result further adjustments were again made to the Applicant’s workstation and equipment.
[16] Ibid at 108-115.
The Applicant meanwhile had consulted her regular General Practitioner (Dr Thushanthi Wijerantne) on 29 July 2020 who issued a medical certificate stating:
In my opinion, she is suffering from right side Golfer’s Elbow (medial Epicondylitis) and left side Tennis Elbow (lateral Epicondylitis, most probably due to repetitive strain injury in hands at work.[17]
[17] Ibid at 106.
Following receipt and consideration of this report, Services Australia approved up to 6 sessions of treatment (including physiotherapy and acupuncture) through their Early Intervention Programme (EIP) and in August 2020 the Applicant participated in a number of these.[18]
[18] Ibid at 70.
The arrival of the COVID pandemic caused changes to take place in the Applicant’s working arrangements and she was approved to be able to work from home[19] where a further ergonomic evaluation was conducted[20] which had particular reference to her “experiencing bilateral elbow pain” and with reference to the fact that “her General Practitioner has reported a diagnosis of tennis elbow and golfers elbow due to repetitive movement at work.”[21]
[19] Ibid at 171.
[20] Ibid at 142-151.
[21] Ibid at 143.
APPLICANT’S MEDICAL HISTORY AFTER THE DATE OF CLAIM
Professor McGill’s report, upon which the Respondent places considerable reliance contains within it reference to a number of reports from other medical professionals, including Dr Farhan Shahzad and Dr Johanna Holland. The Respondent’s Statement of Facts, Issues and Contentions also makes reference to Dr Shahzad’s report but not to Dr Holland’s. Both reports are referenced in the decision under review[22] (dated 12 March 2021), although that of Dr Holland is pending and is included later in the Tribunal documents.[23]
[22] Ibid at 284.
[23] Ibid at 294-309.
On 27 November 2020 the Applicant was examined by DR FARHAN SHAHZAD a Consultant Occupational Physician following a letter of instruction from Allianz Australia Insurance Limited. Dr Shahzad was provided with extensive prior documentation by way of background. He conducted various movement and stress tests on the Applicant noting “localised tenderness over right elbow medial epicondyle” and “left lateral epicondyle”.[24]
[24] Shahzad Report (27 November 2020) page 5.
Dr Shahzad’s report continues in summary:
Ms Mudaliar is a 47 year old, right hand dominant, APS4 Officer who has lodged a claim for right golfers elbow and left tennis elbow in relation to the nature and conditions of her employment. I was unable to justify the reasoning or mechanism of injury in regards to her presentation. It appears to be an incidental finding which would have been anticipated at this stage of her life, irrespective of her employment. There had been no change of work habits as she has been employed in the same workplace for a long period of time. No frank injury has been reported. There was lack of effort noted on physical examination with a pain focussed behaviour. She has had physiotherapy and acupuncture with limited benefits.
There were no significant restrictions noted on her Certificate of Capacity apart from restricted working hours. During the consultation, she also suggested that she may or may not have developed alternate left tennis elbow and right golfers elbow eventually. These may require further treatment.
Although there was mild tenderness and pain noted, I was unable to justify that she had significant issues on physical presentation. The pain focussed behaviour was evident during the presentation. In my opinion, despite ergonomic modifications, no ongoing issues should be present.
There appeared to be non-work related factors in her presentation which could not be established. She denied any past medical history, physical activity, exercises or any other recreational activities outside the workplace. I was unable to establish the causation but her work is not considered to be a substantial contributing factor in her presentation.[25]
[25] Ibid page 6.
In answer to specific questions, Dr Shahzad reports (inter alia):
Provide the causative factors for these diagnoses including the progression of the condition/s (Please include clinical signs and symptoms that support your diagnoses.)
The causative factors are vague and were not well-explained or identified despite repeated questioning and a review of the file documentation. I am unable to establish that her work is a substantial contributing factor.
Is the proposed diagnosis/es and symptomology consistent with the mechanism of the condition described by Ms Mudaliar? Please explain
The stated diagnosis and symptomatology is not consistent with the mechanism of the condition reported where she is working exclusively in a sedentary capacity from a standard desktop with ergonomic support.
Is the proposed diagnosis/es and symptomology consistent with the mechanism of the condition in the medical literature for causality? Please explain.
The mechanism of her condition is not supported by medical literature for causality (on review of the AMA Guides for the Evaluation of Disablement of Disease), injury causation and also review of the ODG1 medical literature.
In your opinion, has Ms Mudaliar’s employment contributed to, to a significant degree, to the causation of her diagnosis? If yes, please detail.
In my opinion, her employment has not contributed (to a significant degree) to the causation of her current presentation.
Would Ms Mudaliar’s condition have occurred at or about this stage of her life, irrespective of her being employed as an Service Officer within the Services Australia?
It is likely that her presentation would have occurred at the stage of her life, irrespective of her being employed as a Services Officer with Services Australia.[26]
[26] Ibid page 7-8.
DR JOHANNA HOLLAND is also a Consultant Occupational Physician who was requested by Services Australia to provide an assessment of the Applicant which she did on 15 March 2021. She was also supplied with extensive background documentation, although it does not appear that she had access to Dr Shahzad’s report.[27]
[27] Ibid at 295.
Her report casts something of a different light or emphasis on the Applicant’s condition compared with the findings of Dr Shahzad. Dr Holland opines:
She presents with prolonged bilateral elbow pain which is exacerbated by keying, mousing and data entry and relieved by extension at the elbows and rest, in a role which she has been performing for many years. Ms Mudalier’s condition shows temporality and reversibility is association with the use of the keyboard, which are part of the inherent duties of her role (worsens at work keying, improves away from work not keying0, and there appears to be a close-response relationship (severity is lessened by less frequent keying).
…..
Ms Mudaliar’s condition is exacerbated by prolonged keying.
….
Ms Mudalier’s symptoms have been brought on by specific, repetitive activities over many years, and will be unlikely to respond to treatment wile there is ongoing provocation by the same method.[28]
[28] Ibid at 301, 306, 307.
Dr Holland concludes that, given the failure of the Applicant’s condition to respond to treatment, a review of the diagnoses of “tennis elbow” or lateral epicondylitis should be undertaken, “alternative diagnoses of elbow pain” might be indicated and differential treatment modalities (including PRP – platelet rich plasma – injections) should be considered. She further suggests that the epicondylitis was contributing to nerve irritation at the elbow.
DR SCOTT BURNE is a specialist Sports Physician who has examined the Applicant on a number of occasions.
It appears his first examination of the Applicant was on 30 November 2020. At that time he concluded that she had a history of bilateral extensor tendinopathy,
“but is still positive for provocation tests on the right. Both elbows also have flexor-pronator tendinopathy and this is fairly quiet at present”.
He further reported:
“an insidious onset of bilateral elbow pain, at a similar time. She noted this particularly working from home (during the COVID 19 pandemic
lockdown, she had been going to the office until April 2020). The pain has progressively worsened this year”
“she experiences pain after activity, sometimes during work”.
“she does not appear to have a clear antecedent cause for her pain and I therefore have put it down to a heavier workload. Eveline needs to break the nexus of pain and I feel that she is not making great progress with her current rehabilitation. She is getting some night symptoms at times”.[29]
[29] Ibid at 249-250.
On 25 January 2021 he reported back to the Applicant’s General Practitioner that:
I followed up with Eveline today with regards to her bilateral elbow pain. Eveline continues to struggle with symptoms over the lateral and posterolateral elbow regions. She also gets milder pain at the medial epicondyle, typical of tendinosis in this region.
Eveline has continued to try to undertake her exercise program which I had described to her at our last appointment. This has not resulted in an ability to persist with her exercise due to pain.
…..
I am obtaining an MRI scan for Eveline's elbows. This will help to rule out other pathologies which may co-exist or be a cause for pain in her region.[30]
[30] Ibid at 265.
On 5 May, again reporting to Dr Wijeratne, he stated:
The right elbow diagnosis has been stated as 'medial epicondylitis' (best referred to as flexor-pronator tendinosis). There is mention of ulnar nerve involvement of the which is causing symptoms radiating down the forearm towards the wrist. The features of tendinopathy at the medial epicondyle and the evidence of recurrent symptoms are described. However, the reporting radiologist has stated that there is no evidence of tendinopathy or neural involvement. This is not in keeping with her symptoms.
--> Given this, I suggest a further radiologist opinion for another interpretation of her films.
Eveline has:
• clinical right elbow flexor-pronator tendinosis ("medial epicondylitis"), not confirmed on imaging
• clinical and radiological right elbow extensor tendinosis ("lateral epicondylitis")
• clinical and radiological left elbow extensor tendinosis ("lateral epicondylitis")
• no radiological evidence of radial tunnel syndrome.[31]
[31] Joint Tender Bundle at 99, emphasis in original.
On 6 May 2021 he reported (“To whom it may concern”) that:
Ms Mudaliak (sic) has bilateral, chronic, symptomatic tendon origin tendinosis of the RIGHT medial (flexor) and LEFT lateral (extensor) sites. Ms Mudaliak's tendinosis has been managed with evidence-based therapies. However, she is still symptomatic, common to many individuals trying to overcome this chronic injury.
Elbow tendon origin tendinosis is related directly to overuse/overload/workplace ergonomics, ultimately, overwhelming the tendon's recovery, resulting in painful tendinosis.
An established related cause for 'tendinopathies' includes office work, especially repetitive use of a computer keyboard and mouse. Ms Mudaliak's office work is also highly likely to be the basis for her symptomatic tendinosis.[32]
[32] Joint Tender Bundle at 19, emphasis in original.
When this statement was put to Professor McGill in his cross-examination by the Tribunal he stated that he believed it to be incorrect and without a sound evidentiary basis for asserting that office work was an established related cause of tendinopathies.
Dr Burne’s same report also contains the observation that:
From the elbow tendon origins five separate tendons arise, that merge with the forearm muscles, essential for wrist and hand function. Unfortunately, after age 30, the origins are prone to injury, “tendinosis” (formerly “tendinitis”) due to overuse.
On 17 November 2021 he reported that:
Eveline's work is, in my opinion, a substantial contributor to her ongoing pain in both elbows. Whilst she has made some good progress over the time since I first saw her, she continues to have symptoms and this is why continued treatment planning is needed.[33]
[33] Ibid at 20.
The Applicant was then examined by ASSOCIATE PROFESSOR NEIL MCGILL at the request of the Respondent. Professor McGill is a Consultant Rheumatologist and a Clinical Associate Professor at Sydney University with an extensive practice both as a consultant and as a treating physician. He provided a report completed on 13 August 2021 and gave oral evidence to the Tribunal.
To his report was attached an article from the American Journal of Epidemiology entitled “Prevalence and Determinant of Lateral and Medial Epicondylitis: A Population Study” by Rhaman Shiri et al.[34] (The Tribunal will refer to this publication as “the Journal article”).
[34] Shiri R et al. Prevalence and determinants of lateral and medial epicondylitis: A population study.
Am J Epidemiol 2006; 164:1065-1074
Professor McGill was provided with extensive background documentation and undertook an extensive interview and limited physical testing of the Applicant (so as to limit any degree of discomfort on her part). The gravamen of his findings were:
I conclude that her multiple tendinopathies which over time have caused symptoms at the knees and elbows, are due to her constitutional predisposition to tendinopathy.
I do not think that her work duties have significantly influenced her symptoms.
The significant pre-existing and work related information is that she had a “very long history of bilateral elbow pain and knee pains” in 2014.
I think her emotional makeup has influenced the pattern of symptoms but nevertheless I think she has probably had symptoms genuinely related to the common extensor and flexor tendons at the elbows.
The natural history of lateral epicondylitis, particularly in the setting of minimal imaging abnormality, is good. PRP is an acceptable but as yet unproven treatment for epicondylitis. The fact that she had experienced prolonged symptoms when assessed in 2014 leads to caution in regard to her future symptom reporting but on all objective grounds one would expect her prognosis to be good.[35]
[35] Joint Tender Bundle at 33.
In both his report and in his oral evidence, Professor McGill drew heavily on the findings reported in the Journal article. The article in question is a study by a team of Finnish epidemiologists examining data from the Finland National Health Survey 2000. Part of that study examined “Age- and Gender-adjusted odds ratios for the association of individual and physical workload factors with lateral or medial epicondylitis”. At the outset it is noted that women are approximately twice as likely as men to suffer from these conditions. Another of its findings was that individuals who undertook “keying” activities for more than four hours per day were 0.7 times less likely to suffer from these conditions.
The article defines a ‘keying job’ as including “typewriting, cash register work, computer display work” (with a duration of at least 4 hours per day) and concluded:
A keying job was associated with lower risk of lateral and medial epicondylitis, although the odds ratio was not significant for lateral epicondylitis.[36]
[36] Shiri et al : op cit at 1072
From this the Respondent seeks to advance an argument against accepting that repetitive keyboard/mouse use might have any causative relationship to conditions of epicondylitis.
The Tribunal has some concerns about drawing such a conclusion simply from the one article. In the first place, this study is more than 20 years old and obviously relates to typewriters and cash registers (not relevant in this application) and computer display work, bearing in mind what the computers of 20 years ago looked like and how their associated keyboards were configured and the pressure then required to effect key-strokes.[37]
[37] See Typing through Time: Keyboard History, >
The Tribunal asked Professor McGill whether he was aware of any updated studies in this field, but he was not able to refer immediately to any. Even cursory online research nevertheless draws attention to further studies. By way of example:
50. Karen Walker-Bone, Keith T Palmer, Isabel Reading, David Coggon, Cyrus Cooper: “Occupation and epicondylitis: a population-based study”, Rheumatology (Oxford). 2012 Feb;51(2):305-10 which reports:
Repetitive exposure to bending/straightening the elbow was a significant risk factor for medial and lateral epicondylitis.
51. Eleonore Herquelot, Julie Bodin, Yves Roquelaure, Catherine Ha, Annette Leclerc, Marcel Goldberg, Marie Zins, Alexis Descatha: ”Work-related risk factors for lateral epicondylitis and other cause of elbow pain in the working population” Am J Ind Med 2013 Apr; 56(4):400-9 which reports:
Hard perceived physical exertion combined with elbow flexion/extension (>2 hr/day) and wrist bending (>2 hr/day) was a strong significant risk factor for elbow pain and epicondylitis…… This study emphasizes the strength of the associations between combined physical exertion and elbow movements and lateral epicondylitis. Certain observed differences in associations with lateral epicondylitis and elbow pain only indicate the need for additional longitudinal studies on different stages of elbow disorders and known risk factors.
There is even another article by the Principal Investigator of the submitted Journal article, Rahman Shiri MD, MPH, PhD (Senior Researcher) EiraViikari-Juntura MD, PhD (Research Professor): “Lateral and medial epicondylitis: Role of occupational factors”, Best Practice & Research Clinical Rheumatology Volume 25, Issue 1, February 2011, Pages 43-57 which reports:
Of occupational risk factors, forceful activities, high force combined with high repetition or awkward posture and awkward postures are associated with epicondylitis. The number of studies is limited to work-related psychosocial factors and the effects are not as consistent as those of physical load factors.
Reference to this material is not intended, in any way, to gainsay Professor McGill’s undoubted and established expertise in this area of rheumatology but rather to explain that the Tribunal bases its findings in this determination on the evidence presented by the Applicant’s treating medical practitioners rather than upon some perhaps less than a contemporary analysis of population study, distant both in time and technology.
DISCUSSION
In summary, the medical evidence before the Tribunal consists of the following:
·Several reports from the Applicant’s various General Practitioners going back to at least 2014, and thence ongoing, which report the pain and discomfort suffered by the Applicant in various joints (including the elbows) without addressing the fundamental aetiology of that pain.
·Several reports from Dr Burne which are qualified to the extent that they opine that the Applicant’s symptomatic tendinosis is “highly likely” related to her work which may have made a “substantial contribution” to the ongoing pain in her elbows. It was the Applicant’s evidence that she might not have informed Dr Burne of her complaints dating back to 2014 and in this respect the Respondent puts the case that his reports should be treated as being less than fully informed about the Applicant’s prior medical history.
·An absence of any ultrasound or MRI evidence displaying any significant abnormality or traumatic presentation in the Applicant’s elbows.
The evidence of Dr Holland suggesting that in all the circumstances the source of the Applicant’s pain should be further explored with the possibility that there might be some alternative diagnoses to account for her symptoms.
The report of Dr Shahzad which indicates that the underlying cause(s) of the Applicant’s symptomatology is unclear but is unlikely to be related to or caused by her work and that it should be highly likely to be present in the Applicant at her time of life regardless of where she worked or what work she was doing.
The report of Professor McGill (supported to the extent as discussed above) by Journal material in which he comes to a definitive conclusion that the Applicant’s multiple tendinopathies “are due to her constitutional predisposition to tendinopathy.”
In considering all the evidence, the Tribunal is persuaded that the conclusion as expressed by Professor McGill, and reported in basically similar terms by Dr Shahzad, should be accepted in preference to those offered by Dr Burne and to a less explicit extent by Dr Wijeratne.
This conclusion is based upon a recognition of the specialist knowledge of the former in the fields of rheumatology and occupational therapy compared with sports medicine and general practice. It is also based upon the fact that both Dr Shahzad and Professor McGill were in possession of a full suite of medical records and patient histories and that they conducted detailed examinations (and some tests) specifically intended to explore the possible linkage between the Applicant’s work practices and her symptomatology.
Their conclusions as to the basic aetiology of the Applicant’s condition being related primarily to the natural ageing process and an underlying predisposition to tendinopathy rather than to any work-related conditions appear unimpeachable.
THE SRC ACT
Section 14(1) of the Act provides:
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.
Section 5B provides:
(1) In this Act:
"disease" means:
(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.
It is the Respondent’s contention that the Applicant’s condition is as a result of the essentially natural processes of ageing and her constitutional predisposition to suffer the ailments which she has. It claims that nothing in her employment can be regarded as a contributory factor to this condition although it does not dispute that the Applicant’s working conditions may have aggravated or precipitated the onset and manifestation of her symptoms.
In Beattie the Federal Court stated:
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. The evidence earlier recounted shows this to be a very different type of case. 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.[38]
[38] Commonwealth v Beattie [1981] FCA 88 at 201.
More explicitly in this Tribunal, Deputy President Forgie said:
It was accepted by the Full Court of the Federal Court in Commonwealth v Beattie (Beattie) that “... pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.” (emphasis added). I have highlighted the word “may” in this passage for it is clear from a reading of the whole of the joint judgment of Evatt and Sheppard JJ that pain brought on by work activity does not necessarily constitute an aggravation of a pre-existing injury. Whether it does is a question to be decided on the particular evidence in the particular case.[39]
[39] Balacki and Comcare [2013] AATA 768 at [26]. Citations omitted.
In Comcare v Martin[40] the High Court made it clear that a compensable claim cannot arise unless the in injury or ailment would not have arisen but for causative factors arising directly from the conditions of employment. If it is clear that the injury or ailment was the result of factors such as ageing or some constitutional predisposition which meant that the onset of the ailment was predictable or inevitable then the employer is exempt from liability under the SRC Act.
[40] [2016] HCA 43 at [42]-[47].
While acknowledging the genuine pain and discomfort suffered by the Applicant and sympathising with the position in which she finds herself, nevertheless, that is the case in this application.
DECISION
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[SGD]........................................
Associate
Dated: 16 February 2022
Date(s) of hearing: 1 February 2022 Applicant: In person Counsel for the Respondent: M Gollan Solicitors for the Respondent: Sparke Helmore
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