Muscat and Australian Postal Corporation (Compensation)
[2016] AATA 13
•19 January 2016
Muscat and Australian Postal Corporation (Compensation) [2016] AATA 13 (19 January 2016)
Division
GENERAL DIVISION
File Numbers
2014/3716 and 2014/4318
Re
Christina Muscat
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Dr Damien Cremean
Date 19 January 2016 Place Melbourne Decisions under review set aside and the respondent is liable to pay compensation in respect of both conditions in accordance with law.
........... .[sgd
Senior Member
COMPENSATION—ailments - plantar fasciitis – osteoarthritis - whether compensable –aggravation - significant - decisions under review set aside
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) sections 5A, 5B, 14
Cases
Colombo and Australian Postal Corporation [2015] AATA 10
Comcare v Lofts [2013] FCA 1197
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Khan [2007] FCA 15
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
March v E & MH Stramare - Pty Ltd (1991) 171 CLR 506
Re Su and Comcare [2011] AATA 934
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Dr Damien Cremean
19 January 2016
The applicant Christina Muscat has made an application to review two decisions of the Respondent
The first decision (AAT application no. 2014/3716) was made on 29 May 2014 and affirmed a determination made on 16 December 2013 that the Respondent was not liable to pay compensation to the Applicant under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of a bilateral plantar fasciitis condition associated with calcaneal spurs on both feet.
The second decision (AAT application no. 2014/4318) was made on 23 June 2014 and affirmed a determination made on 11 March 2014 that the Respondent was not liable to pay compensation to the Applicant under the SRC Act in respect of a condition identified as tendinitis right and left thumbs
Both reviews were heard together at a hearing in which the Applicant gave sworn evidence.
OUTLINE OF EVIDENCE
Applicant
The Applicant was born on 28 October 1959 and is aged 55. She left school when she was 16 and went to secretarial college. At 18 she was working as an administrative assistant and then as a personal assistant.
She commenced work with Australia Post in about 1993. She was working in the State Mail Centre in mail processing. This required her to operate mail processing machines –feeding letters from letter trays and removing processed items. There were also some heavier duties involved in her work including lifting and tipping mailbags.
From the end of 1993 until the earlier part of 1995 the Applicant was on maternity leave. On her return to work she was located for a short time in the State Mail Centre but was then transferred to the Eastern Parcels Facility and was engaged in parcels work
From about 2004 the Applicant worked at the Melbourne Parcel Facility. For a short time between 2005 and 2006 she performed administrative duties on a full time basis. She then returned to part-time afternoon shift work as a parcel processor.
In early 2012 the Applicant suffered a serious injury to her left shoulder when working on a conveyor belt. At the time she was reaching, grabbing and pushing parcels from left to right. She recalls picking out one particular parcel from the Utility Loading Device because the rollers on the conveyor were not working properly - and pulling it towards her and in the course of doing so feeling a pull and a pain in her shoulder. Subsequently, she had arthroscopic surgery and a rotator cuff repair operation on her shoulder.
The Applicant was off work for about 8 months convalescing. She returned to work in February 2013, working 25 hours per week on reduced duties not involving use of her upper body and particularly her left arm. In that month, however, and in March and April 2013 also, she was off work on sick leave on various occasions. She recalls feeling fatigued and unable to perform all her duties when required
The Applicant says that over the months following her return to work she noticed a burning sensation in her feet while standing. This foot pain came on while she was at work. She says that as the weeks continued, and the more she was standing on her feet to do her work, the worse the pain got. She would even stand on alternate feet to ease the pain. Australia Post supplied work boots to help alleviate the symptoms
By 1 October 2013 the Applicant says that the pain in her feet had become so unbearable that she had to stop work. She reported her condition to her superiors and the following day she saw a Dr Shumba and was referred for x-rays or ultrasound or both. She was told she had a spur on both feet and was given analgesics.
On 31 October 2013 the Applicant made a claim for compensation under the SRC Act in respect of pain in both her feet. This condition was later diagnosed as plantar fasciitis and it was this condition which was rejected as non-compensable under the SRC Act by the determination made on 16 December 2013.
Between October 2013 and January 2014 the Applicant was performing mostly seated duties to avoid getting sore feet. She was doing coding on small parcels for at least 2 to 2.5 hours or more per day. This was done in the small parcels area. This work involved her picking up parcels in her left hand, examining them, and then coding them on a keypad using her right hand. In particular she was using her right thumb. When done, she would put a parcel on the conveyor for further processing with her left hand. She says the work was very repetitive and she was doing about 800 or 850 parcels per hour. This works out to about a parcel every four seconds.
In January 2014 however the Applicant noticed pain in the thumbs on both hands. She first noticed pain at the base of her right thumb when doing the coding work. She sought treatment form her doctor and was referred for ultrasound and was told she had tendinitis in both thumbs.
On 24 January 2014 she reported the injury and made a claim for compensation.
This was later rejected as non-compensable under the SRC Act by the determination made on 11 March 2014.
Medical
A number of medical professionals gave evidence at the hearing. They include: Mr Khan, an orthopaedic surgeon; Mr Haig, a consultant orthopaedic surgeon; Mr McDonald a consultant orthopaedic surgeon; Dr Reiter, a consultant rheumatologist; and Mr Wood, a consultant orthopaedic and sports surgeon who was also the Applicant’s treating surgeon. A video of the Applicant performing work duties was viewed to demonstrate the nature of the tasks.
In the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) were certificates of incapacity recording the Applicant’s conditions. Those certificates were generally consistent with her evidence.
Furthermore, there was a report from Dr Cheesman dated 25 August 2014. He was not called to give evidence but I note that in his report he says the Applicant’s osteoarthritis in itself;
may provoke symptoms which may limit her ability to tolerate some work tasks in the longer term eg work which involves gripping.
I also note that he says, in itself, osteoarthritis is;
not likely to cause harm although it may provoke symptoms due to underlying conditions.
Mr Khan in a report dated 10 March 2015, expresses the view that the Applicant presents with chronic plantar fasciitis in the feet and he notes that this condition appears to have responded to physiotherapy and adequate insoles. As regards her hands, he expresses the view that she has degenerative arthritis both clinically and radiologically in the carpometacarpal joints of both thumbs.
Mr Khan said that in his opinion;
... on the balance of probabilities, [the Applicant has suffered] injury during the course of her employment [and her employment] has contributed to and aggravated a pre–existing condition of degenerative arthritis in the carpometacarpal joints of both thumbs.
As well, he said her employment has been a significant contributing cause to the development of symptoms of plantar fasciitis [in her feet].
In oral testimony, Mr Khan said he thought the Applicant was a person who would have a predisposition to plantar fasciitis and as she continued working on her feet for long periods the condition would have worsened. Although more females than males suffer the condition, he said what causes the inflammation and thus the pain (of this unhappy condition as he called it) is not that well understood. When asked if work had played a significant part in her condition he said it was difficult to comment in a scientific way but as a doctor he was clear that she was more pre-disposed to the condition due to the nature of her work. In re-examination, Mr Khan said that the Applicant’s work had aggravated her condition. This was indicated by there being no pain to mention before working but pain being experienced when she recommenced work following a period of convalescence.
Concerning the Applicant’s thumbs, in his oral testimony, Mr Khan said that she suffered widespread osteoarthritis in both hands. This was commonly the case in females more than males and was distinctly an age-related illness, occurring when sufferers were aged in their 50’s. He regarded the Applicant’s repetitive hand movements at work as having aggravated the condition. There would be micro-trauma to her thumbs leading to inflammation and thus to pain.
Mr Haig, in a report dated 28 October 2015, when commenting on the Applicant’s plantar fasciitis said he disagreed absolutely with a comment by Mr Wood that this is a condition that people working on their feet are prone to get. He said:
... it is not an industrial disease ... but is constitutional in origin. ... it may be that being on her feet exacerbated her symptoms and that is readily understandable ... but it had no part to play in the causation of her condition.
In an earlier report dated 6 March 2014, Mr Haig said that the Applicant suffers;
... osteoarthritis in both hands involving many joints of the fingers and thumbs but particularly the distal and interphalangeal joints and the basal joints. [and]
... is due to constitutional factors [and that] there had been no work related injury in her case [but that] ... any use of her hands is likely to aggravate her condition.
Mr Haig re-expressed this view in his later report of 28 October saying that basal joint thumb osteoarthritis is constitutional and there is no relationship in a causative way to her employment with the Respondent and that the same applies also to her plantar fasciitis. In short, he said:
... I do not believe her work was causative even in a contributive [sic] way to either her bilateral thumb basal joint osteoarthritis or her plantar fasciitis.
He added that nothing he had seen in the video footage of the applicant performing her work had caused him to alter his views in any way.
In oral testimony Mr Haig emphasised that the Applicant suffers severe osteoarthritis in the thumbs and fingers which he regarded as being longstanding. He said the condition was not one caused by activity as such but was constitutional and derived from a person’s genes. He mentioned that the condition commonly occurs in females and is progressive at a greater or lesser rate over time. He said he did not believe that the Applicant’s work would cause anything in relation to the underlying pathology.
Mr McDonald was asked only to comment on the condition of the Applicant’s feet. In a report dated 6 December 2013, he stated his view that she suffers from an enthesopathy affecting the tissues around the left os calcis. This had resolved on the right side but not the left. He said that on the balance of probabilities this condition is related to factors unrelated to work and is a natural progression of an underlying condition. In a later report dated 26 October 2015, written partly in response to a report of Mr Wood dated 20 October 2015, Mr McDonald said he had “never” considered plantar fasciitis to be an industrial disease. He said the “vast majority” of his patients who had presented with plantar fasciitis had simply described a “spontaneous onset of heel pain without a precipitating event”. At no stage in his evidence, however, did he indicate exactly how many patients he himself may have treated for the condition.
Mr McDonald said he had viewed the video of the Applicant at work. He expressed the opinion that:
Should a person develop plantar fasciitis it is evident that there would be a greater awareness in someone who is on there [sic] feet for a considerable period of time compared with someone who has a sedentary position.
However, he said that does not mean being on the feet is causative. He referred to a study in the literature of 126,492 cases of plantar fasciitis over an eight year period in the United States military. He said the study found an association with obesity and age but not with work, with only 10.5 cases per 1000 persons per year. He considered there to be a “vast difference” between the military training which soldiers must undertake and the work he observed the Applicant performing on the video.
In the report dated 26 October 2015, Mr McDonald said he considered the Applicant to have an arthritic disposition, if he took into account the condition in her hands as well, as reported by Mr Wood. He confirmed this as his view in oral testimony. This seemed however to go beyond his explicit remit. The Applicant had been convalescing at home following her shoulder surgery and then returned to work, and having done so then noticed the symptoms in her feet. Mr McDonald said this told him she became symptomatic upon returning to work by spending time on her feet, but it did not show that standing on her feet was the cause of her condition.
Under cross-examination, when asked for an explanation of the cause of the pain in her feet, Mr McDonald said the Applicant developed a degree of degenerative change associated with inflammation and this would be the cause of her discomfort. In re-examination he said he did not consider that standing on her feet for perhaps up to 3.5 hours at a time would have been a major factor in the worsening of her condition.
Dr Reiter’s report is dated 22 September 2015. She gave the following diagnosis of the Applicant’s condition in her feet: ...she has bilateral plantar fasciitis due to her poor foot biomechanics, where on examination she has bilaterally pronated feet with fallen medial longitudinal arches, which … is intrinsic, constitutional and bears no relationship to her employment with [the Respondent]. As to the condition in her hands, Dr Reiter says the Applicant: has osteoarthritis of her 1st carpometacarpal joints worse on the right than left, which is a constitutional condition and not related to her employment. She says the Applicant would have developed intermittent pain and tenderness of these joints regardless of her employment with the Respondent. She confirmed in her report her view that the Applicant’s employment with the Respondent did not cause the symptoms in her hands and feet and that, while she has an underlying pre-existing condition, employment with the Respondent has not significantly aggravated [it] and that she has no impairment as a result of work injury or aggravation of an underlying condition affecting her hands and feet.
Dr Reiter’s oral testimony was to the same effect as her written report. She said she was confident that employment with the Respondent had played no role in the Applicant’s conditions: the Applicant was in an age group and of the female gender which made development of the conditions more likely. Being on her feet at work for perhaps 3 hours or more would not have caused the Applicant’s plantar fasciitis either to present or to deteriorate. Pain at the base of her thumbs was a classic symptom of osteoarthritis, which is more common in women than in men, particularly in post-menopausal women. Her osteoarthritis became symptomatic at work but could have become symptomatic anywhere no matter what she was doing and work was not an aggravating factor.
Under cross-examination, Dr Reiter said the “tipping point” for the Applicant’s osteoarthritis was not her work but her age. She was not engaged in the heavy manual work of a labourer. However, Dr Reiter admitted that work could aggravate the symptoms of osteoarthritis in the sense that the sufferer would be feeling symptoms because of their underlying condition. But she said she saw this more as the presentation of symptoms and not as aggravation. There was no real connection between the Applicant’s work and her osteoarthritic condition and the pain of her condition was not produced by her work.
In his report dated 20 October 2015, as regards the Applicant’s feet, Mr Wood says that she suffers bilateral plantar fasciitis, ... anatomically associated with heel spurs. It is the inflammation of the plantar fascia that causes her the pain. As regards her hands, Mr Wood says his specific diagnosis is bilateral trapeziometacarpal arthritis which was initially diagnosed as a thumb extensor tendon problem. As to both complaints, Mr Wood’s view is that the Applicant’s employment has been a significant or a major contributing factor. Concerning the former (plantar fasciitis) Mr Wood said that this is a condition seen almost exclusively in people who either stand for too long or carry too much. In the Applicant’s case he says that she was standing all day and he would consider this to be a major contributor, if not the only contributor, to her condition. Therefore, this is a condition related to her workplace. The Tribunal notes that the evidence of the Applicant was not that she was standing all day but only for some of it.
In his report, Mr Wood says carpometacarpal arthritis is an issue which is seen in an industrial setting—the Applicant’s condition is an overuse injury involving overuse of manipulative force with respect to the upper limb and fingers in particular. He says there is usually a constitutional element here but it usually comes on in association with manual activities, and also is made significantly more painful for the state it is in by the exposure of a person to repetitive manual activities. He considers the Applicant to be occupationally involved in such activities and considers her work not only to be an aggravator of, but also a contributor to, the degeneration evident in her carpometacarpal joints. In short, he says he has little doubt that her workplace has contributed to her current condition.
In respect of both conditions therefore, Mr Wood disagreed entirely with Dr Reiter. In his oral testimony, Mr Wood said that the Applicant’s plantar fasciitis is a condition capable of being caused by industrial activity and he said he believed it was so caused in the Applicant’s case. He said he had not come across many cases where the condition was not brought on by standing. The major contributing factor to the condition—which was not idiopathic -- was a person working on their feet and this was an observation he based on clinical practice. Indeed he considered that anyone who was standing and working on their feet for 3 hours a day or so would get the condition. This would be of concern to the Respondent and he suggested the provision of rubber (or anti-fatigue) matting on the floor in the workplace.
Mr Wood said that more women suffered the condition than men and it was more common in middle age. The Applicant’s work duties had contributed to her condition to a significant degree. Asked about the study referred to by Mr McDonald in his evidence, Mr Wood said he could not comment on that study first hand. However, he expressed misgivings about the numbers involved and hence the depth of the study. Moreover, many of the subjects within the study would be doing physical exercise so it would not be a balanced cohort.
As regards the Applicant’s osteoarthritis, Mr Wood said he did not say it was caused by her work but was exacerbated by it -- in particular by the work she was performing at a rapid rate. Thus, he would expect her osteoarthritis to show up because of a high level of activity in an arthritic joint. Pain however would come from the inflammation and not from the joint itself. Had she not engaged in her work duties she would still be asymptomatic; although the symptoms may well have come on at a later time. Nonetheless, her work activities would have significantly aggravated her thumb condition
CONTENTIONS AND SUBMISSIONS
The Applicant contends in lengthy submissions that there is sufficient evidence before the Tribunal for it to set aside both reviewable decisions and to vary the original determinations to reflect overall findings on the evidence that, under section 14 of the SRC Act, the Respondent is liable t for the conditions of aggravation of bilateral plantar fasciitis and aggravation of the first carpometacarpal joint of both thumbs.
The Respondent on the other hand, also in lengthy submissions, contends that the Tribunal should find on the evidence that the Applicant’s employment did not contribute by way of cause or aggravation to either such condition (or if there was a contribution to either it was not significant); and that accordingly both such decisions should be affirmed.
CONSIDERATION
By section 14 of the SRC Act the Respondent is liable to pay compensation in accordance with the SRC Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. The Respondent mentions that this has often been called a “gateway” provision: Comcare v Lofts [2013] FCA 1197 at [8]. By section 4(9) of the SRC Act an incapacity for work means an incapacity for work suffered by an employee as a result of an injury being an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred.
An injury is defined in section 5A(1) as a disease suffered by an employee or an injury (other than a disease) suffered by an employee that is a physical or mental injury arising out of or in the course of such employee’s employment. A “disease” is defined in section 5B(1)of the SRC Act as an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment. An “ailment” is defined in section 4(1) of the SRC Act as any physical or mental ailment ,disorder, defect or morbid condition (whether of sudden onset or gradual development)
A significant degree is defined in section 5B(3) of the SRC Act as a degree that is substantially more than material. Matters which may be taken into account by the Tribunal are set out in section 5B(2) of the SRC Act. They include the duration of an employee’s employment and the nature of, and particular tasks involved in, that employment (see sections 5B(2) (a) and (b)). Other matters also may be taken into account and section 5B places no limit on those.
I am satisfied it is correct to describe the Applicant as suffering bilateral plantar fasciitis in her feet and osteoarthritis (not tendinitis) in the thumbs of both her hands. It is not in issue, as far as the Respondent is concerned, that both conditions satisfy the descriptor of an ailment under section 4(1) of the SRC Act. It is also not in issue that, subject otherwise to satisfying section 5B of the SRC Act, each meets the definition of a disease; and likewise, subject otherwise to satisfying section 5A of the SRC Act, each is thus an injury under the SRC Act.
The question for me to determine, as I see it, is whether the correct or preferable decision is that the Applicant’s two conditions are, or one of them is, compensable under section 14 of the SRC Act. In light of the Respondent’s rightful concession that each is an ailment, this requires me to consider whether her conditions are strictly ailments or aggravations of ailments contributed to, to a significant degree, by her employment. But should her conditions be ailments or aggravations of ailments contributed to a significant degree by her employment, -- it follows she has diseases under the SRC Act (and thus injuries) which are compensable, providing such diseases (or injuries) arose out of or in the course of her employment.
The word aggravation in section 5B(1) is not defined in the SRC Act, except inclusively in section 4(1) as including acceleration or recurrence. I see the word aggravation as synonymous with exacerbate. Indeed in Wiegand v Comcare Australia [2002] FCA 1464 at [21] von Doussa J said: I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of that case his Honour said both expressions convey the same notion, namely that the depression became worse. There is a more detailed discussion on this point in Commonwealth of Australia v Beattie (1981) 35 ALR 369.
A relevant question to ask therefore is whether the Applicant’s conditions, if they be aggravations of ailments, became worse by reason of her employment. In that regard, remarks of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634 are more than merely instructive:
As applied to a disease [the word exacerbation] … is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. ... Moffitt J was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism". Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.
Windeyer J, in the same case (at 640), speaking of the words in the statute under consideration (aggravation, acceleration, exacerbation or deterioration) said:
The question that each [word] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.
An aggravation or exacerbation of a condition may of course take the form of pain. Finkelstein J said in Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44 that:
Pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury
It is true that in Commonwealth of Australia v Beattie, Evatt and Sheppard JJ (at 378) said with reference to Kitto J’s remarks in the Federal Broom case that, although there can be an exacerbation of a previously existing injury by activity which increases or precipitates pain;
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. “
They provided an example of a worker whose fractured leg is encased in plaster who is unable to put it to the ground without suffering pain and they said this is not a case of aggravation. Kelly J in the same case (at 386) said it was proper to say that when the respondent in the case suffered incapacitating pain there was an aggravation of her pre-existing injury.
Turning to the facts of this case I think it right to say that plantar fasciitis and osteoarthritis are not conditions due every time to workplace activities. They can occur in someone whether they are a working person or away from any workplace. This seems to be common sense.
It was Mr Haig’s view and Dr Reiter’s view also and (somewhat less distinctly) Mr McDonald’s as well, that the Applicant’s conditions were not caused by her workplace activities. I do not regard their evidence as being though that such conditions can never occur in the workplace. I regarded them as saying that the Applicant’s conditions were not caused by her workplace. As I see it, the workplace, as a general matter, cannot logically be excluded as a place where and by which these conditions could possibly be caused. They are not conditions that can occur only away from the workplace. But I accept that they are not workplace conditions as such. I would not maintain a view that the Applicant’s conditions are in the nature of industrial diseases in the way, for instance, that chimneysweeps developed testicular cancer as a direct consequence of the particular work they undertook.
In my view it would misdescribe the purport of Mr Wood’s evidence to say he contended that the Applicant’s conditions were industrial diseases. I understood his evidence to be that they occurred in an industrial setting in the Applicant’s case in that the symptoms showed up in the workplace. I do not regard him as saying more than that, to the effect that these conditions only show up in the workplace.
That also was the Applicant’s evidence. Both her conditions showed up in the workplace. I do not find Mr Wood’s description, therefore, remarkable in the way suggested by the Respondent. He was not saying these were workplace injuries as such, as I understood him.
It is not in doubt that the Applicant does suffer from the conditions. Nor could it be in doubt that from time to time these conditions have flared up in pain or soreness brought on by inflammation. Further, I would have thought there could be no controversy that these conditions are such that they might flare up in the workplace in the case of a worker.
Given these various points, I would see the real question as being whether the Applicant’s conditions were, put simply, connected to her workplace—causally, and not merely temporally. And, in the case of both, either as an ailment or as an aggravation of an ailment. But if “connected”, to use that neutral expression, then, whether connected to a significant degree or not.
I accept the oral testimony of the Applicant that it was only after returning to work in February 2013 after a convalescent period at home — following her shoulder surgery —that she noticed the burning sensation in her feet while standing at work. In oral testimony she said she had experienced no pain in her feet like this before. She said she had a burning sensation over the whole foot but more on the soles of her feet. She was standing for 3.5 hours or so per shift. She said she perhaps first noticed this in about April or May.
I accept that this burning sensation had become quite severe by October 2013 when the Applicant reported the matter. Under cross-examination she said that she had reached a point where she could no longer stand on her feet. Her feet would be burning and even moving around did not help her. But she was never at a stage where she could not actually go to work. She said her feet still get sore but not to the degree previously.
I also accept the evidence of the Applicant that after this, and after her duties were modified or altered, she noticed pain in the base of both her thumbs in about January 2014. She described the pain when first felt as a short sharp pain in the area at the base of her right thumb when she was working on coding. Coding duties involved her processing about 800 or 850 items per hour. Later she then felt sharp pain in her left thumb. She said she had never experienced a problem like this before either.
The evidence of the Applicant was not the subject of any serious challenge on factual matters — the Respondent concedes as much - and I consider I may proceed to make findings based on it and in accordance with it. I therefore do so.
I consider that even if plantar fasciitis and osteoarthritis are constitutional conditions and may originate away from the workplace, they are still conditions which may be aggravated by activities in the workplace. As regards plantar fasciitis, I note that Mr Khan said that the Applicant would have had a predisposition to plantar fasciitis and that Dr Reiter is even more direct on the point in saying the Applicant’s plantar fasciitis is due to her poor foot biomechanics. I note also Mr McDonald’s reference to the Applicant having an arthritic disposition. I realise that Mr Wood said he has not come across many cases where plantar fasciitis has not been brought on by lengthy periods of standing. While that does not exclude the possibility of cases occurring otherwise than by standing, the whole purport and tenor of his evidence was that the Applicant’s condition was due to standing at work.
The question then for me is whether I am satisfied to the required degree that the Applicant’s plantar fasciitis and osteoarthritis were ailments or aggravations of ailments caused by her work. In regard to aggravations of ailments, I refer to the decision of Mortimer J in Comcarev Reardon [2015] FCA 1166 where her Honour says (at [35]) that the respondent in that case was correct to accept the distinction between a condition ‘becoming’ worse and being ‘made’ worse by employment. She said this is critical for the purposes of section 5B of the SRC Act. This distinction is one which has been long observed and is not novel.
It is a distinction I apply in this case.
I am able to be reasonably satisfied on the evidence — particularly that of Mr Khan and Mr Wood - that the Applicant’s plantar fasciitis was caused by her workplace activities in the Respondent’s employ. Thus it is an ailment. But if I was not satisfied of this — and her condition came about away from the workplace - I would still be satisfied that her workplace activities exacerbated her condition. Thus it would then be a case of her ailment being aggravated.
The latter does not mean that her condition is one that would not be compensable. In my view it would be compensable as an aggravated ailment.
The Respondent contends that the Applicant’s osteoarthritis seems to be a condition of long standing which was not caused as such by the workplace. Her workplace activities thus did not cause her osteoarthritis in the beginning. But that does not mean the condition is one which is not compensable under the SRC Act. In my view it is compensable as an aggravated ailment.
It is proper to observe in that connection that neither condition (plantar fasciitis or osteoarthritis) was actually experienced by the Applicant before returning to work with the Respondent following her period of convalescence. This to my mind is a significant circumstance. Upon returning to work, she noticed the pain or soreness in her feet while standing and, later, when performing other duties, in her thumbs. She was not in pain or discomfort in either regard before returning to work. Returning to work did not make her plantar fasciitis become worse as she was not in pain from plantar fasciitis before returning to work. In this way I consider her workplace activities caused her plantar fasciitis. But if contrary to my view her plantar fasciitis was not caused by her workplace activities then those activities still made her plantar fasciitis worse by making it painful and sore.
Further, I regard her return to work as making her osteoarthritis worse by making it also painful or sore. As regards both conditions, what had been asymptomatic became symptomatic and made each condition worse.
However, if in truth, the Applicant’s plantar fasciitis was not caused by her standing in her workplace, then her standing in her workplace aggravated the condition and made it worse — it did not simply become worse by her standing.
Both conditions in my view became symptomatic out of the Applicant carrying out work duties. The plantar fasciitis became symptomatic out of the Applicant’s lengthy periods of standing on her feet. Her osteoarthritis became symptomatic out of rapid sorting movements using her hands. The submission of the Respondent that causation cannot be inferred from correlation I reject as, in a way, absurd. Of course, causation is able to be inferred from correlation — particularly correlation which is close in time.
There is not in my view causation merely by correlation in any event. I find in respect of both conditions a clear and direct link between the conditions and the Applicant’s work activities. Those activities can readily be seen to be directly implicated causatively in the conditions. In one case by excessive standing and in the other by excessive hand movements. Neither of the Applicant’s ailments was caused, or became aggravated, in the way they did, at the times when they did, except by reason of her workplace activities and not merely temporally. I am therefore satisfied of the necessary causal link. Mason CJ in March v E&MH Stramare Pty Ltd (1991) 171 CLR 506 at [5] said of the legal concept of causation: the legal concept …differs from philosophical and scientific notions of causation. Moreover, the legal concept is based on the balance of probabilities which may not on occasion happen to coincide with strict scientific fact.
In this way, in my view, the Applicant’s work caused her plantar fasciitis (as I find) or aggravated it and aggravated her osteoarthritis at different times over the 2013 to 2014 period. The presence of both conditions became apparent by the pain or soreness of each, indicating inflammation. I did not follow Mr McDonald’s evidence when he said that in the case of the plantar fasciitis the Applicant being on her feet at work would have a greater awareness of the condition but that that did not mean being on one’s feet is causative. I was left unclear by what he meant by causative. Being on her feet at work did surely cause the Applicant to have an awareness of her condition. Her condition was made worse by her continuing her duties on her feet. That, it seems to me, constituted an aggravation of her condition—if that condition was not caused by her excessive standing in the first place as I find.
I note Mr Haig’s evidence that being on her feet exacerbated the Applicant’s symptoms and that this was readily understandable. For him then to say that her work had no part to play in the causation of her condition, however, only makes sense in my view if one is looking at initial causation—that is as an ailment and not as an aggravation of an ailment. The aggravation of an ailment is sufficient in law for relevant causation. His focus obviously was on the initial causation of the ailment itself.
I also did not follow Dr Reiter’s evidence when she said that being on her feet at work would not have caused the Applicant’s condition to either present or deteriorate. This seems to conflict with what I think are the facts of the case as I find them—that it was only while she was on her feet at work that the Applicant’s condition did present itself in pain or soreness meaning the condition made its presence felt. Being on her feet excessively made the Applicant’s condition worse—if it did not cause it in the first place as I find. And the pain and soreness increased over time to the point of becoming unbearable. I regard Dr Reiter’s evidence in this regard, in a denial even of presentation of symptoms, as overreaching.
As regards the osteoarthritis in her thumbs, Dr Reiter said that while the Applicant’s condition did become symptomatic at work it could have become symptomatic anywhere, no matter whether she was working or not. But if it did become symptomatic at work—by showing up as pain-- then in my view there was an aggravation of her ailment. It was made worse by her work in showing up as pain. It is possibly true that her condition could have become symptomatic regardless of work — although this is something we can never know---but this does not mean it did not become symptomatic at work and indeed this very point seems to be acknowledged by Dr Reiter when she says the osteoarthritis did become symptomatic at work. In her evidence she said also that work could aggravate the symptoms of osteoarthritis in the sense that the sufferer at work feels the symptoms of the underlying condition. Again, like Mr Haig, she seems to be focusing on initial causation. However, causation in law may be founded in the aggravation of an ailment.
The evidence of Mr Wood is to be preferred in all these matters in my view. His evidence supports a finding which I make that the Applicant’s work was a major contributing factor to both her conditions or ailments. Specifically, her plantar fasciitis was brought on by her standing for long periods at work. This was consistent with what he had seen in clinical practice and is consistent with the facts in the case. Moreover, he was the Applicant’s treating surgeon. I accept his analysis of the unsighted article referred to by Mr McDonald and share his misgivings about its scientific value.
In the same way I also prefer Mr Wood’s evidence regarding the Applicant’s osteoarthritis. Mr Wood did not make a claim that this condition of the Applicant was caused as such by her work but rather was exacerbated by it. He did not overreach. That is to say the Applicant’s condition showed up in pain coming from inflammation brought on by the high level of activity in her work duties. I therefore reject the analysis of Dr Reiter in particular (and the Respondent’s other medical experts) that there was no real connection between the Applicant’s work and her osteoarthritic condition or that the pain of her condition was not produced by her work.
I find Dr Reiter’s analysis (and theirs) simply ignores the realities of the situation as I find them to be — that the Applicant’s symptoms only showed up at work and not before and showed up in a causally relevant way and not merely temporally. It is true that the Applicant was not doing the heavy manual work of a labourer but I found this reference in Dr Reiter’s evidence unusual and unhelpful. Surely work-caused osteoarthritis is not limited to only those persons who are labourers doing heavy manual work. Dr Reiter seemed to be suggesting this was so, if I understood her evidence correctly, but I did not see the point as one which could be supported. No literature was referred to by her in support of her contention
Preferring Mr Wood’s evidence as I do, and to a lesser extent Mr Khan’s, I must next consider whether aggravation of the Applicant’s conditions was contributed to, to a significant degree, by her employment. As noted above, under section 5B(3) of the SRC Act a contribution is significant if it is substantially more than material. Whether a contribution is one to this degree is a question of fact for the Tribunal as was affirmed by Mortimer J in Comcare v Reardon, above, at [36]. And as was said by the Tribunal in Re Su andComcare [2011] AATA 934 at [5], which was quoted by Mortimer J without disapproval, the SRC Act does not require employment to be the sole, proximate or dominant cause of an injury. I would add that this is so providing employment contributes to it to a “significant” degree. In that regard I would respectfully express agreement with what Finn J said in Comcare v Sahu-Khan [2007] FCA 15 at [4] that in considering the meaning of that word the course of statutory construction is often not aided by substituting for the word used …another word which is not used. I have therefore refrained from adopting the Respondent’s substitute word of prominent. There is I consider helpful discussion on this point in Colombo and Australian Postal Corporation [2015] AATA 10.
I am satisfied on the evidence that the Applicant’s employment with the Respondent significantly contributed to her plantar fasciitis and to her osteoarthritis in a way substantially more than merely material. I regard her employment with the Respondent as having caused her plantar fasciitis or as having aggravated it and as having aggravated her osteoarthritis. I do not regard the Applicant’s case as being similar to one of having a leg in plaster and not being able to put it on the ground without pain. If the Applicant was an injured person before her symptoms became apparent she was not fully aware of or concerned about these injuries and had no reason to expect the onset of pain or soreness in her feet or thumbs as she would or could expect if either her feet or her hands were encased in plaster.
The Applicant’s evidence is solely to the effect that her foot pain came on while she was standing for lengthy periods at work after February 2013 performing duties. The pain continued to worsen to the point where it became unbearable and by 1 October 2013 she reported it. It was made worse by her work. I regard her work thus as significantly contributing to the aggravation of her condition - and more than merely materially doing so. There is nothing else in the evidence provided which could reasonably be regarded as significantly contributing to her condition or to the aggravation of it. To say this was going to happen to her anyway does not mean it could not or did not happen this way.
The Applicant’s evidence then concerning her osteoarthritis is solely to the effect that it made its presence felt after being placed on other duties and that the pain of the condition was first noticed in January 2014 when she was performing rapid hand movements. Given that she had longstanding osteoarthritis her condition was made worse by her work. I regard her work as thus significantly contributing to the aggravation of her condition – and more than merely materially doing so. As with her foot pain, there is nothing else in the evidence in the case which could reasonably be regarded as a significant contributor to the aggravation of her condition. Again, to say this was going to happen to her anyway does not mean it could not or did not happen this way.
In respect of both of her conditions, I rely upon the evidence of Mr Wood in particular but also upon the evidence of Mr Khan.
Mr Wood was quite specific in saying in respect of both conditions that the Applicant’s employment was a “significant “or “major” contributing factor. He said that the Applicant’s plantar fasciitis is a condition seen almost exclusively in people who stand for too long —as in the case of the Applicant — or who carry too much weight. As to her osteoarthritis he said that it is a condition that usually comes on with manual activities but is one made significantly more painful if the person engages in repetitive manual activities – as in the case of the Applicant. Interestingly, I note also that it was Mr Haig also who said that any use of hands by a person suffering osteoarthritis is likely to aggravate the condition. As well, I note Professor Cheesman’s observations in this regard.
Mr Khan’s evidence was to similar effect. He said that the Applicant’s employment had been a significant contributing cause in the development of her symptoms of plantar fasciitis. He said also that her employment with the Respondent had contributed to and aggravated the pre-existing arthritis in both thumbs. Her repetitive hand movements at work had aggravated her condition. His casual comment that she did not appear to be doing much with her right hand (or thumb) in the video which was seen is, I think, of no consequence overall and I give it little weight.
I regard both these witnesses as supporting the view I have taken.
Mr Khan mentioned that more females than males tend to suffer both conditions. He said osteoarthritis tends to occur when sufferers are aged in their 50’s. This was also Dr Reiter’s view. But from this she concluded that the Applicant’s employment with the Respondent had played no role in her conditions. In light of the evidence, however, I consider there is no warrant for this view. As a general proposition, in the absence of statistical evidence being supplied, it may well be true that females aged in their 50’s are likely to develop either or both conditions. The Respondent in submissions sought to make much of this point in an unflattering description of the Applicant. But the Applicant is as she is. In any event, that does not mean that performing workplace duties may not be a cause of an ailment or a cause of an ailment’s aggravation, even if it is a given that she is a middle aged post-menopausal female .
CONCLUSION
I am satisfied for the reasons I have given that the Applicant’s conditions of plantar fasciitis and osteoarthritis in the thumbs are both compensable under section 14 of the SRC Act. Each is an injury under the SRC Act by being a disease. In the case of her plantar fasciitis it is an ailment in itself but, if not, her workplace caused aggravation of that ailment. Her osteoarthritis is an ailment that was aggravated by her workplace. In respect of both her plantar fasciitis and her osteoarthritis her work with the Respondent contributed to a significant degree and the requirement that an injury occur in the course of employment is satisfied.
Accordingly, the decisions under review must be set aside and the respondent is liable to pay compensation in respect of both conditions in accordance with law.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member .................[sgd].......................................................
Administrative Assistant
Dated 19 January 2015
Dates of hearing 26 - 29 October Date final submissions received 4 November 2015 Counsel for the Applicant Mr Mark Seymour Advocate for the Applicant Ms Saskia Deerson Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Mr Michael Snell Advocate for the Respondent Ms Leanne Kellett, Litigation Section
Australian Postal Corporation
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