Neville and Comcare (Compensation)
[2018] AATA 3738
•5 October 2018
Neville and Comcare (Compensation) [2018] AATA 3738 (5 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5055
Re:Stephen Neville
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:5 October 2018
Place:Hobart
The reviewable decision dated 23 June 2017 is affirmed.
.................................[sgd]................................
Senior Member D. J. Morris
CATCHWORDS
WORKERS’ COMPENSATION – claim for ‘repetitive strain injury’ – whether Applicant has suffered injury – no confirmed diagnosis – section 5B of Act not satisfied – therefore section 14 of Act not satisfied – not necessary to consider causation – no compensable condition – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14CASES
Lim v Comcare [2016] FCA 709; (2016) 69 AAR 420Vo and Comcare [2005] AATA 753
REASONS FOR DECISION
Senior Member D. J. Morris
5 October 2018
BACKGROUND
Mr Stephen Neville has brought to the Tribunal an application to review a decision made by Comcare (the Respondent) on 23 June 2017 and affirmed by a reconsideration decision on 14 August 2017 denying liability in relation to a claim, made by Mr Neville under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for an injury, namely: “non-specific forearm discomfort (NSFP).”
A hearing was held on 6 and 7 August 2018. Mr Neville represented himself, made submissions, gave evidence and was cross-examined. Mr Craig Hobbs, of counsel, represented the Respondent, instructed by Mr Andrew Vas. The other witnesses called were medical practitioners who had examined Mr Neville and provided reports: Dr David Cooke, Dr Michael Lucas and Dr Barry Gilbert, and Mr Marcus Burton, Mr Neville’s treating exercise physiologist. At the conclusion of the hearing, the Respondent tendered written closing arguments, so the Tribunal gave leave to the parties to provide written closing submissions, which they did. The Respondent tendered documents lodged with the Tribunal under section 37 of the Administrative Appeals Tribunal Act 1975 (T-documents and supplementary T-documents).
The following exhibits were also tendered:
·Statement of Mr Neville dated 10 May 2018 (A1);
·Email from Mr Neville dated 24 October 2017 with a list of treating medical practitioners (A2);
·ipar Worksite Ergonomic Assessment Report dated 31 March 2016 (A3);
·Medical certificate of Dr Cooke, date of examination 9 March 2017 (A4);
·Medical certificate of Dr Cooke, dated 9 March 2017 (A5);
·Medical certificate of Dr Cooke, dated 10 April 2017 (A6);
·Comcare Workers’ Compensation Claim Form submitted 15 May 2017 (A7);
·Medical report of Dr Lucas, dated 30 May 2017 (A8);
·Recommendation letter from Allianz Insurance to the Department of Human Services (DHS) dated 21 June 2017 (A9);
·Determination by a Delegate of the Chief Executive Officer of Comcare dated 23 June 2017 (A10);
·Letter dated 23 June 2017 to Mr Neville from Allianz Insurance (A11);
·Medical certificate of Dr Elizabeth Lord, dated 27 June 2017 (A12);
·Reconsideration Request from Mr Neville to Comcare, dated 10 July 2017 (A13);
·Recommendation to Affirm Determination from Allianz Insurance to DHS, dated 14 August 2017 (A14);
·Letter from Dr Cooke to Comcare, dated 18 September 2017 (A15);
·Medical certificate of Dr Cooke, dated 18 September 2017 (A16);
·Medical certificate of Dr Glenn Richardson, dated 5 October 2017 (A17);
·Medical certificate of Dr Cooke, dated 30 October 2017 (A18);
·Medical certificate of Dr Cooke, dated 20 November 2017 (A19);
·Letter from DHS to Dr Cooke dated 18 December 2017 attaching 14 December 2017 Fitness for Duty Assessment conducted by Dr Gilbert (A20);
·Medical certificate of Dr Cooke, dated 8 January 2018 (A21);
·Undated letter from Mr Burston, exercise physiologist relating to assessment on 22 January 2018 (A22);
·Nerve conduction study dated 3 March 2018 conducted by Dr Debo Gorai, neurologist (A23);
·Email from DHS dated 1 May 2018 with a link to Human Intervention Procedures (A24);
·DHS Incident Report with date of incident 24 April 2012 and date reported 30 July 2012 (A25);
·DHS Incident Report with date of incident 24 March 2012 and date reported 30 March 2015 (A26);
·DHS Incident Report with date of incident 27 February 2017 and date reported 10 March 2017 (A27);
·Bundle of documents lodged 3 August 2018 with a briefing letter to Dr Gilbert from Comcare dated 29 July 2018, a supplementary report of Dr Gilbert dated 3 August 2018, and Dr Gilbert’s curriculum vitae (R1); and
·Letter from Associate Professor Brian Herman, Director of Interventional Cardiology, Launceston General Hospital to Dr Cooke, dated 10 September 2012 (R2, summonsed document).
After the hearing, the Tribunal sought, and was provided with, the professional curricula vitae of all the health professionals who gave oral evidence in this matter.
THE LAW AND THE TASK OF THE TRIBUNAL
Section 4 of the Act is the “Interpretation” clause and provides, in the definition of ailment, and the definition of disease, as follows:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual progression);
“disease” has the meaning given by section 5B.
Section 5B of the Act states
Definition of disease
(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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following factors may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
Section 14 of the Act provides:
Compensation for injuries
(1)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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Therefore, in considering Mr Neville’s application, the Tribunal must examine two questions. The first is whether he was suffering from an “ailment” or the aggravation of an ailment (section 5B(1) of the Act) at the time of the determination made on 23 June 2017. If the answer to that question is ‘yes’, the second question that must be addressed is: was the ailment or aggravation of the ailment contributed to, by a significant degree, by the Applicant’s employment and is therefore a “disease” for the purposes of section 5B of the Act and may therefore be an “injury” for the purposes of section 5A(1)(a) of the Act.
Mr Neville’s contentions
Mr Neville is an employee of DHS. He started employment with DHS in 1995 and is employed as a Complex Assessment Officer – APS Level 5, a position he held as at the date of his claimed injury, 27 February 2017.
Mr Neville wrote that in 1997 after two years of employment by DHS, he started to experience pain in his right forearm, wrist and numbness in his fingers (Exhibit A1). He went on:
This was diagnosed as a repetitive strain overuse injury by my general practitioner Dr David Cooke. Dr Cooke has been my GP for over 20 years and over 40 years [sic] experience as a GP. I have continued to experience intermittent pain in my right wrist off and on for the last 20 years.
Mr Neville goes on to say that, to manage the condition, he has over the last 20 years modified his work practices, including using his computer mouse with his left hand (he is right-handed) in order to share the workload; and, when required, icing the area, taking pain-killers and wearing a slip-on neoprene support. He said he stands for scheduled periods of 30 minutes, four times a day, does a series of stretching exercises several times a day and takes recommended hourly, five-minute screen breaks and, at this time, stands and stretches.
Mr Neville stated that in May 2017 DHS further recognised his injury as a work-related injury by approving the use of Dragon voice-assisted technology, as recommended by Dr Cooke, which he said, in his written submissions, has reduced the amount of keying he is required to do by approximately 20 per cent and has reduced the severity of the symptoms he is experiencing. However, in his oral evidence at the hearing, when asked whether 35 per cent of his working day was spent on typing and whether this had been reduced by between 20 and 30 per cent, Mr Neville responded that the voice-activated software he had been provided with has possibly reduced his manual keying by “possibly 50 per cent”. Mr Neville reiterated this point in his written closing submission, received by the Tribunal on 21 August 2018 in which he wrote:
In May 2017, DHS have further recognised my injury as a work related injury by approving the use of Dragon voice assisted technology, as recommended by my GP Dr David Cooke on 10/4/17. (A6) This has reduced the amount of keying required by approximately 30%-50% and has reduced the severity of the symptoms. This is further proof that this Repetitive Strain Injury (RSI)/chronic overuse injury is work-related as the symptoms have reduced with reduced keyboard keying.
Mr Neville stated that on 30 May 2017 the Respondent referred him for an assessment by an independent medical examiner, Dr Michael Lucas, and that Dr Lucas made a diagnosis of “non-specific forearm pain” (NSFP) defined as “pain in the forearm in the absence of a specific diagnosis or pathology” and went on to say that “NSFP is not considered a work injury”. Mr Neville contended that he did not agree with Dr Lucas’ alternate diagnosis as it was based on a “one hour examination with an assessor unfamiliar with my history” and submitted that this should not override Dr Cooke’s specific diagnosis of repetitive strain injury (RSI).
The Respondent’s contentions
Mr Hobbs submitted that the Respondent accepted that Mr Neville may experience painful symptoms in his right forearm, but contended that the question centred on whether Mr Neville has sustained an injury within the meaning of the Act. Mr Hobbs said that the Respondent relied on the opinions of Dr Lucas and Dr Gilbert, neither of whom could identify the cause of Mr Neville’s right arm discomfort.
Mr Hobbs submitted that Mr Neville had undergone a nerve conduction study which did not reveal any abnormality, and there was no positive diagnosis so, in the Respondent’s submission, there is therefore no “injury” within the meaning of the Act.
Mr Hobbs referred the Tribunal to the decision in Vo and Comcare [2005] AATA 773 where Senior Member Constance (as he then was) and Member Miller considered the question as to whether Mr Vo had suffered an injury within the meaning of section 14 of the Act:
52. Mr Vo contends that he suffers from a disease, namely an aggravation of an ailment (as defined in section 4 of the Act) which was contributed to in a material degree by his employment. We have also given consideration as to whether Mr Vo suffers from an ailment which is itself compensable, as distinct from an aggravation.
53 Having found that Mr Vo has "an underlying intensely obsessional personality structure" and "paranoid traits" we must consider whether this condition is a "disease" as defined. There are 2 steps for the determination of this question – is the condition suffered by Mr Vo an ailment and if it is, was the ailment contributed to in a material degree by his employment?
54. The definition of "ailment" is very broad but we are not satisfied that Mr Vo’s personality structure and paranoid traits are properly characterised as a mental ailment, disorder, defect or morbid condition. The terms "ailment" and "morbid condition" both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of "disease" in the Act. In context the words "disorder" and "defect" should be interpreted accordingly. The definition of "ailment" in section 4 is somewhat circular as it includes the word "ailment" within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of "ailment" includes "a morbid affection of the body or mind" and "morbid" includes "affected by, proceeding from, or characteristic of disease."
55. The fact that Mr Vo’s personality is such that he experiences difficulties in situations in which others may not does not make his condition an ailment. Both Dr Skinner and Dr Saboisky are of the opinion that Mr Vo did not suffer from a psychiatric illness following his retrenchment and we have accepted their evidence in this regard. Their views are supported by Ms Hutchinson and Ms Bell.
56. As we are not satisfied that Mr Vo suffers from an "ailment" it follows that it is not necessary to consider whether there has been an aggravation of an ailment or the degree of contribution by his employment.
57. We have found that Mr Vo did suffer some stress from various incidents which occurred in his workplace. However, as was stated by the Federal Court in Comcare v Mooi (1996) 42 ALD 495 at 501:
".......the need to show something more than the development of a work-caused condition of the body or mind and associated impairment of capacity to work has been an essential requirement since the inception of the legislation: work-caused physical or mental fatigue that impairs an employee’s capacity to work is no more compensible (sic) than debilitating work-caused distress, unless that distress amounts to or results in a condition of disease or illness."
As we have not been satisfied on the evidence that the stress suffered by Mr Vo (being stress which was contributed to by his employment) resulted in any disease or illness, this stress does not amount to an "injury" within the meaning of the Act and is not compensable. Even if the stress had resulted in an injury, any stress arising from the decision to terminate Mr Vo’s employment in accordance with its terms was not contributed to by that employment: Australian Industry Development Corporation v Boyd (1990) 95 ALR 149 at 171.
Mr Hobbs said that the pain and the discomfort which the Respondent accepts Mr Neville may be experiencing, while possibly but not necessarily symptoms of a medical condition, do not amount to an “injury” within the meaning of the Act and are not compensable. Citing the Federal Court decision of Flick J in Lim v Comcare [2016] FCA 709 at [41]: “…more is needed than a mere assertion that a claimant ‘feels unwell’. The fact of ‘injury’ must be made out.” Mr Hobbs submitted that in this matter, given the absence of pathology and the absence of a medical diagnosis, an “injury” to Mr Neville has not been established.
Evidence of Dr David Cooke
Dr Cooke gave evidence by telephone. He said he had been treating Mr Neville for some 20 years and first saw Mr Neville in relation to exacerbation of his right forearm symptoms on 9 March 2017. The Tribunal had before it a medical certificate dated 10 April 2017 in which Dr Cooke stated that “Mr Stephen Neville has an RSI condition and will benefit from a trial of Dragon dictation soft ware to assist in the improvement of his symptoms.”
In cross-examination, Dr Cooke was asked about his diagnosis of RSI. He responded that recording of pain is not, itself, a diagnosis and his use of the term “RSI” was descriptive and relates to the distribution of Mr Neville’s pain. Dr Cooke told the Tribunal that this was “not strictly a diagnosis”.
Mr Hobbs put to Dr Cooke that pain itself does not necessarily equate with a diagnosable injury. Dr Cooke disagreed and said that pain itself may well be diagnostic, because the quality and nature of pain may give a diagnosis in cases such as neuralgia and chronic regional pain syndrome, and it was his opinion that the same applies to RSI.
Dr Cooke agreed that he had on 3 April 2017 administered a Tinel’s test and a Phalen’s test to Mr Neville, with negative results. He remembered referring Mr Neville for a nerve conduction study and agreed that Dr Gorai reported that was negative for any nerve damage, and an x-ray of Mr Neville’s cervical spine did not show any compounding. A mass in the right axilla was investigated but found to be a subcutaneous cyst.
Mr Hobbs asked Dr Cooke whether there was any pathology to support a particular diagnosis in relation to Mr Neville’s right forearm complaint, and Dr Cooke agreed that there was not. Dr Cooke was referred to the report of Dr Lucas dated 30 May 2017 and Dr Lucas’ diagnosis of NSFP. Dr Cooke said he was unfamiliar with that term and that “95 per cent of GPs would say”, given that Mr Neville’s symptoms resolve, he has an “overuse or RSI syndrome”. Dr Cooke agreed that there is a lot of disagreement in professional literature but that in his long period of practising as a general practitioner, Mr Neville’s described symptoms, in his opinion, fit with overuse syndrome related to an action.
Mr Hobbs asked Dr Cooke if he was aware that RSI is now not accepted as a diagnosed medical condition. Dr Cooke said he was aware that doctors no longer want to use the term, but “we are still left with a person experiencing pain and discomfort.”
Mr Hobbs submitted to Dr Cooke that Mr Neville experienced pain and discomfort when using his computer but that there was no pathology to demonstrate the occurrence of an injury and asked if he agreed with that proposition. Dr Cooke said he did not entirely agree. He accepted there was no pathology that could be discerned but was of the opinion that there is still a syndrome and he used the general term “overuse RSI” which he accepted is not now generally used.
Evidence of Mr Marcus Burston
Mr Burston, an exercise physiologist, gave evidence by telephone. He said he first saw Mr Neville in January 2018 with an overuse injury of the right arm, wrist and shoulder. Mr Neville asked Mr Burston whether the symptoms he displayed were consistent with 20 years working with a computer, and Mr Burston agreed.
In cross-examination Mr Burston said he was aware of what was described as the “RSI epidemic” in the 1980s and agreed that he rarely saw the term “RSI” in a medical report, today. Mr Burston said he had recommended a home programme of exercises for Mr Neville which had seen his shoulder and scapula condition improve. Mr Burston was asked whether he thought Mr Neville’s shoulder condition had caused the right arm discomfort, and his response was that it had heavily contributed. He said it was difficult to say whether Mr Neville had a workplace injury, but, in Mr Burston’s opinion, the workplace had contributed to his condition.
Evidence of Dr Barry Gilbert
Dr Gilbert gave evidence by video link. He is a public health physician and said he had assessed Mr Neville on behalf of DHS on 4 December 2017 and provided a Fitness for Duty Assessment dated 14 December 2017 and a supplementary report dated 3 August 2018, which were in evidence.
In the Fitness for Duty Assessment, Dr Gilbert responded to certain specific questions posed by the Respondent, as follows:
Please provide your diagnosis(es) of the employee’s condition(s) with reference to your area(s) of specialisation:
A definitive diagnosis requires further information (see below).
I am a Public Health Physician, and have worked in clinical medicine with a specialisation in occupational medicine, managing the impact that health has upon working populations. A formal resume can be provided if requested.
If your diagnosis is difference from the diagnosis put forward by the treating physician/s, please discuss the facts or reasons that have lead [sic] you to a different conclusion.
His treating health professional, general practitioner, Dr Cooke, has diagnosed a chronic overuse syndrome, and paraesthesia suggestive of mixed ulnar and median nerve compression.
Whilst that may be a reasonable description, I do not agree that he has typical median or ulnar nerve symptoms and clinical findings, and he requires further investigation (see below).
Is there any inconsistency between the reported symptoms and level of incapacity and level of incapacity and objectively identified pathology?
I am unable to conclude a definitive diagnosis for Mr Neville’s condition.
The diagnosis of non-specific, activity related arm pain in the absence of objective physical findings and symptoms that do not respond to objective paraphysiology has been characterised as a form of medical syndrome.
Arm pain related to activity, and work-related activity in particular is more usually seen in patients with physically demanding work. Psychological factors such as catastrophic thinking, symptoms of depression and heightened illness concern can determine a substantial percentage of the disability associated with such hand and arm pains.
[…]
Previously his symptoms would have fitted into the diagnosis of ‘repetitive strain injury’. This description is no longer used as a diagnosis since the term, which attempted to describe the underlying problem, was not supportively correlated with repetitive motion, evidence of strain or clinical evidence of injury.
More recently chronic overuse syndrome is a term that has been used to characterise pain without objective clinical findings. In any event, non-specific forearm pain is thought not to be work-related. It can only be suggested as a ‘diagnosis of exclusion’, where investigation has adequately excluded other potential pathology such as nerve entrapment.
Dr Gilbert went on to recommend Mr Neville undergo a nerve conduction study. The nerve conduction study took place on 3 March 2018, performed by Dr Debo Gorai, neurologist. Dr Gorai concluded:
There is no electrophysiological evidence of a right median nerve dysfunction at the level of wrist. There is no electrophysiological evidence of a right ulnar nerve dysfunction at the level of elbow.
Dr Gilbert reiterated the conclusions in his reports in his oral evidence. He said RSI was a term used in the 1980s which has been supplanted by different terms. He said people often experience upper limb pain with no objective diagnosis and pain as an experience is not denied, it can be caused by nerve impingement or compression syndromes, but does not seem to be linked to keystrokes or hours of work of a person.
Evidence of Dr Michael Lucas
Dr Lucas gave evidence by telephone. He assessed Mr Neville on 29 May 2017 and provided a report dated 30 May 2017. In cross-examination by Mr Neville, Dr Lucas was asked, if his diagnosis of NSFP was not brought about by work, what activity could bring it on? Dr Lucas said it was hard to identify a cause of NSFP as the contributing factors were multi-factorial, and may include psychosocial factors.
The Tribunal directly questioned Dr Lucas about Dr Cooke’s diagnosis. Dr Lucas responded that in the 1980s the term RSI was accepted and the diagnosis was made on the basis of physiology. He said that people undertaking keyboard work were found not to be represented in greater numbers than persons employed in other occupations and the consensus of medical opinion shifted to include psychosocial factors. Dr Lucas said the term RSI was abandoned and, in its place, “occupational overuse syndrome” was a term employed for a time, and that term, too, has now been succeeded by the term NSFP.
In his report, Dr Lucas responded to certain specific questions in the Respondent’s letter of instruction as follows:
Based on your assessment and the available medical information, please confirm your diagnosis.
Considered diagnosis is non-specific forearm discomfort (NSFP).
Please provide a description of the condition and the diagnostic criteria used in reaching this diagnosis.
Condition and diagnostic criteria are as outlined. Non-specific forearm pain (NSFP) is defined as pain in the forearm in the absence of a specific diagnosis or pathology. NSFP is characterised by diffuse pain in the absence of discernible pathology. Additional features that may be present include allodynia, cramp, weakness and muscle tenderness. NSFP is characterized by an absence of objective physical findings and symptoms that do not correspond with objective pathophysiology.
Provide the causation factors for this diagnosis including the progression of the condition (Please include clinical signs and symptoms that support your diagnosis).
Causal theories for NSFP remain unsubstantiated and inadequately researched. It is considered that a strict biomedical model of pain cannot sufficiently explain the condition.
Confidently attributing a significant work injury component to NSFP is considered challenging – whilst associations are frequently made by sufferers, NSFP is not considered a work injury.
Is the proposed diagnosis/es and symptomology consistent with the mechanism of the condition described by Mr Neville?
Yes – whilst associations are frequently made by sufferers, NSFP is not considered a work injury.
(Reference to academic texts omitted.)
CONSIDERATION
The Tribunal notes the concession at the outset from the Respondent that there is no suggestion that Mr Neville’s reporting of right forearm discomfort is not genuinely made. It would seem to the Tribunal that, on the basis of the clinical notes of Dr Cooke, Mr Neville has reported right forearm discomfort intermittently, but over a number of years. Allied to that, he has also reported shoulder and scapula pain (as corroborated by Mr Burston) and, as mentioned above, a right axilla cyst.
The Tribunal must consider the medical evidence before it in deciding whether or not Mr Neville’s reported symptoms are sufficient to satisfy the provisions of sections 5B and 14 of the Act, before going on to consider causation and the contribution of his work to the medical ailment. Dr Cooke’s evidence was that he accepted that his description of Mr Neville’s condition as “overuse/RSI” was “not a strong diagnosis” but he deployed the term essentially, the Tribunal concludes, as a descriptor more than a settled diagnosis. It was significant, in the Tribunal’s view, that, when pressed, Dr Cooke said, in his oral evidence, it was “not strictly a diagnosis”.
Dr Lucas concluded that his diagnosis of Mr Neville’s condition was NSFP. Mr Neville submitted that Dr Lucas came to this conclusion after a one hour examination, and that Dr Cooke’s diagnosis should be preferred because Mr Neville has been his patient for some 20 years and he knows Mr Neville’s medical history much more comprehensively. The Tribunal has some sympathy with this submission, in terms of both Dr Cooke and Dr Lucas having similar qualifications, both being general practitioners who are Fellows of the Royal Australian College of General Practitioners (noting that in his report Dr Lucas used the general term ‘consultant occupational physician’) and so similar weight is accorded to their opinions, and perhaps more weight to Dr Cooke’s opinion, in terms of his greater knowledge of Mr Neville’s longitudinal clinical history. However, countering this, Dr Cooke agreed in his evidence at the hearing that his labelling of Mr Neville as having RSI was not strictly a diagnosis.
The Tribunal also places significant weight on the report and evidence of Dr Gilbert, whose professional background includes serving as President of the Australia and New Zealand Society of Occupational Medicine. Dr Gilbert’s conclusion was that the term RSI has (rightly) fallen out of favour in medical literature because it was apt to mislead. In his supplementary report dated 3 August 2018, Dr Gilbert wrote:
An injury is usually defined as harm or hurt, usually applied to damage inflicted on the body by an external force. This is clear when there are objective signs supported by confirmatory investigations, such as true tendonitis (eg deQuervain’s tenosynovitis).
In that respect RSI was not a conventional disease, but a term used to describe causation that was not subsequently reported by evidence.
Later in the report, in response to the specific question as to whether he disagreed with Dr Cooke’s diagnosis of RSI, Dr Gilbert responded:
Yes, I do disagree, since I am of the opinion that RSI is a term no longer in use and not a diagnosis in biomedical terms. That this has been controversial over time is to understate the matter.
The differential diagnosis for the broad term ‘RSI’ does include a number of specific medical conditions including, but not limited to:
·Bursitis
·Tendonitis
·Carpal tunnel syndrome
·Raynaud’s disease
·Cubital tunnel syndrome
·deQuervain’s disease
·thoracic outlet syndrome
·intersection syndrome
·Dupuytren’s contracture
·rotator cuff syndrome
·medial and lateral epicondylitis
·stenosing tenosynovitis
None of these conditions have been diagnosed with Mr Neville.
In terms of Mr Burston’s evidence, the Tribunal notes that he only recently saw Mr Neville and the primary purpose was to assist him with a shoulder condition. Without at all reflecting on Mr Burston’s area of expertise, while Mr Burston may be of the view that the shoulder condition has been contributed to by Mr Neville’s duties at work, no weight is attached to this conclusion in relation to the claimed condition which is the subject of this review.
An essential first element in assessing a claim for workers’ compensation is that a person has a medically diagnosed ailment as defined in section 4 of the Act and whether a person has an “injury” in terms of section 5B(1)(a). It is accepted that Mr Neville may have discomfort in his right forearm, but that is not enough. Mr Neville relies on Dr Cooke’s use of the term “overuse/RSI” as a settled diagnosis, but in his evidence, Dr Cooke himself submitted it was not strictly a diagnosis. As outlined above, two other medical practitioners who examined Mr Neville repudiate this diagnosis: one diagnosed NSFP, and both independently came to the conclusion that no evidence has been brought forth that any forearm discomfort Mr Neville was experiencing at the time of his claim is work-caused.
On many occasions, the Tribunal is required to assess competing diagnoses by medical practitioners where a person has reported particular symptoms, and must then use best endeavours to assess which is the better, or best, diagnosis, as the case may be. This can be a challenging task. However, Mr Neville’s situation is not such a case. There are no competing diagnoses: Dr Cooke, Dr Lucas and Dr Gilbert all agreed that Mr Neville’s right forearm pain complaint does not have a settled diagnosis.
The Tribunal finds that, in relation to the application under review, the essential element of there being an “injury” is not satisfied. The Tribunal finds that, as there is no “injury”, section 14 of the Act is not enlivened in terms of liability for compensation. It is not therefore necessary to go on to consider the contribution of Mr Neville’s work. However, the Tribunal makes the point that, on his own evidence about his daily work duties, Mr Neville told the Tribunal that only 35 per cent of his time as a Complex Assessment Officer involves keyboard work; much of what he does involves examining financial spreadsheets, reading submitted documents and talking to clients about their financial affairs. In his oral evidence Mr Neville agreed that, since he started using voice-activated software, even the 35 per cent component of his day which did involve typing had significantly decreased, even possibly halved. On his own estimation, therefore, around 17 per cent of his working day is actually spent typing, and Mr Neville gave extensive evidence about his rigorous adherence to regular breaks during the day, stretches at his work station, daily walks and other fitness activities outside of work.
The inevitable conclusion of the Tribunal based on the weight of medical evidence before it and applying the requirements of the Act, is that the reviewable decision in relation to this claim was the correct decision.
DECISION
The reviewable decision dated 23 June 2017 is affirmed.
I certify that the preceding 43 (forty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
...................................[sgd].................................
Associate
Dated: 5 October 2018
Date(s) of hearing: 6-7 August 2018 Date final submissions received: 3 September 2018 Applicant: In person Counsel for the Respondent: Mr C Hobbs Solicitors for the Respondent: Mr A Vas, Comcare
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