Nguyen and Comcare (Compensation) - [2023] AATA 3099

Nguyen and Comcare (Compensation) [2023] AATA 3099 (29 September 2023)
Division:GENERAL DIVISION
File Number: 2020/7539 and 2021/0287
Re:Felicia Nguyen
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member George Hallwood
Date:29 September 2023
Place:Adelaide

1. The Tribunal sets aside the reviewable decision of 12 November 2020 which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of “ganglion of dorsal scapholunate (right)” pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975. In substitution the Tribunal decides:
a) Liability is accepted to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of “ganglion of dorsal scapholunate (right)” pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975.
b) Liability is not accepted to pay compensation pursuant to s 14 of the SRC Act in respect of other injuries forming part of this claim.

2. The Tribunal affirms the reviewable decision of 14 January 2021 which denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of “Triangular Fibrocartilage Complex tear with ulnar abutment (right)” pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975.
3. The Tribunal declines to exercise its discretion to make a costs order under s 67(8) of the SRC Act.
.......................[SGD]..........................
Member Hallwood

CATCHWORDS
COMPENSATION – SRC Act s 14 – determination of liability to pay compensation – claim for “ganglion of dorsal scapholunate (right)” –whether applicant suffered a physical injury – whether a disease - whether condition contributed to, to significant degree, by applicant’s employment with ATO (SRC Act s 5B) – reviewable decision set aside
COMPENSATION – SRC Act s 14 – determination denied liability to pay compensation –claim for “Triangular Fibrocartilage Complex tear with ulnar abutment (right)” - whether applicant suffered a physical injury – whether an injury (other than a disease) (SRC Act s 5A) – reviewable decision affirmed
PROCEDURE – whether Tribunal should exercise its discretion to award costs (SRC Act s67(8) – Tribunal declines to exercise discretion to make costs order
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 62, 64(1).
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 4(8), 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 6(1), 7(7), 14, 14(1), 67.
CASES
Australian Postal Corporation v Burch (1998) 85 FCR 264; [1998] FCA 944
Browne v Dunn (1893) 6 R 67
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn [2007] FCA 15
Commonwealth of Australia v Beattie (1981) 35 ALR 369
E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238
Federal Broom Pty Ltd v Semlitch (1964) 110 CLR 626
Gibson and Comcare (Compensation) [2021] AATA 1183
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ;(2000) 200 CLR 286
Mellor v Australian Postal Corporation [2009] FCA 504
Reardon and Comcare [2015] AATA 360
Roncevich and Repatriation Commission [2005] HCA 40
Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Su v Comcare [2011] AATA 934
SECONDARY MATERIALS
AMA Guides to the Evaluation of Disease and Injury Causation, (American Medical Association, Chicago, USA, 2^nd ed, 2014)
REASONS FOR DECISION
Member Hallwood
29 September 2023
THE APPLICATION

Ms Felicia Nguyen works for the Australian Taxation Office (the ATO) and has at all material times been an employee for the purpose of s 5 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
Ms Nguyen is seeking review of two reviewable workers’ compensation decisions.
The first of these decisions relates to a claim for compensation lodged on 10 July 2020 in respect of “ganglion in right wrist and constant pain in right wrist, neck pain, bilateral shoulders pain and back pain” (the Ganglion Claim).[1]
[1] Exhibit 5, T3.
A reviewable decision of 12 November 2020 denied liability to pay compensation under s 14 of the SRC Act for the Ganglion Claim and Ms Nguyen lodged an application with the Tribunal for a review of this decision on 16 November 2020.[2]
[2] Exhibit 5, T79.
Ms Nguyen confirmed at the hearing that she was not pursuing a review of the Ganglion Claim insofar as it also relates to neck pain, bilateral shoulders pain and back pain.
The second of the decisions relates to a claim for compensation in respect of “tearing of the radial margin of the TFCC [Triangular Fibrocartilage Complex] and associated mild sclerosis and oedema in the adjacent lunate” in the right wrist (the TFCC Claim).[3]
[3] Exhibit 6, ST3.
A reviewable decision dated 14 January 2021 denied liability to pay compensation for the TFCC Claim.[4] Ms Nguyen lodged an application with the Tribunal for review of the TFCC Claim decision on 20 January 2021.[5]
[4] Exhibit 6, ST48.
[5] Exhibit 6, ST1.
BACKGROUND
Ms Nguyen is 45 years old and has worked with the ATO since February 2001, commencing via the Graduate Program soon after completing Law and Commerce at university in 2000. She went on to complete a Master of Taxation while working with the ATO and she is now employed as a Compliance Officer Executive Level 1 (EL1).[6]
[6] Exhibit 1, A1.
Ms Nguyen’s roles at the ATO have largely been desk based, making phone calls and conducting research, then recording results on the computer using a keyboard and mouse.
Ms Nguyen has a history of pain in her right wrist dating back to July 2013 which she has said was caused by typing and use of the mouse in the workplace. Her workplace has provided accommodations for her wrist pain.[7]
[7] Exhibit 6, ST4.
In relation to both claims currently before the Tribunal, the relevant claim forms identify 8 August 2014 as the date on which the Applicant first noted symptoms.
Ms Nguyen’s description of the cause of her injury is largely the same for both the Ganglion Claim and the TFCC Claim. Below is the description from the TFCC Claim:
“these conditions resulted overtime [sic] from excessive use of keyboard and mouse and prolonged period of sitting down at work… my role… involves sitting down in front of the computer for at least 7 hours and 21 mins per day with lots of typing and mouse work. This put a lot of pressure on my right wrist, medical test shows tearing of the radial margin of the TFCC and associated mild sclerosis and oedema in the adjacent lunatere [sic] my right wrist. These injuries cause on going and constant pain in my right wrist”. [8]
[8] Exhibit 6, ST3, pp10-11.
THE ISSUES
It is not in dispute that Ms Nguyen has a ganglion and also a TFCC tear in right wrist.
The Tribunal notes that the Respondent is also not disputing that the Applicant had provided written notice of her injury as soon as practicable after becoming aware of it.
The key issue in this matter is whether the Applicant suffered an injury resulting in incapacity for work or impairment for which Comcare is liable to pay compensation under s 14 of the SRC Act. This may be for either or each of the Ganglion Claim or the TFCC Claim.
The Ganglion Claim
The Ganglion Claim requires consideration of:
(a)Whether the Ganglion is a disease, or an aggravation of a disease, contributed to, to a significant degree by Ms Nguyen’s employment with the ATO; or
(b)Whether the Ganglion is an injury (other than a disease), that arose out of, or in the course of, Ms Nguyen’s employment with the ATO; or
(c)Whether the Ganglion is an aggravation of an injury (other than a disease), that arose out of, or in the course of, Ms Nguyen’s employment with the ATO, whether or not that injury arose out of, or in the course of, Ms Nguyen’s employment.
The TFCC Claim
The TFCC Claim requires consideration of:
(a)Whether the TFCC tear is a disease, or an aggravation of a disease, contributed to, to a significant degree by Ms Nguyen’s employment with the ATO; or
(b)Whether the TFCC tear is an injury (other than a disease), that arose out of, or in the course of, Ms Nguyen’s employment with the ATO; or
(c)Whether the TFCC tear is an aggravation of an injury (other than a disease), that arose out of, or in the course of, Ms Nguyen’s employment with the ATO, whether or not that injury arose out of, or in the course of, Ms Nguyen’s employment.
The application was heard as a video hearing using Microsoft Teams during the COVID-19 pandemic on 2, 3 and 4 May 2022. The Tribunal considered this the type of hearing that would be suitable in the circumstances and neither party objected to this form of hearing. The Tribunal is grateful for the cooperation of the parties with the protective measures taken.
LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act relevantly 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 4(8) of the SRC Act states:
A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee in respect of which compensation is payable under this Act.
Section 5A of the SRC Act sets out the definition of “injury”.
1)In this Act:
"injury" means:
a)    a disease suffered by an employee; or
b)    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, the employee's employment; or
c)    an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
2)For the purposes of subsection 1) and without limiting that subsection, reasonable administrative action is taken to include the following:
a)    a reasonable appraisal of the employee's performance;
b)    a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
c)    a reasonable suspension action in respect of the employee's employment;
d)    a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
e)    anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
f)     anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B of the SRC Act provides the 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 matters 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 the 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 4(1) of the SRC Act also relevantly contains a definition for “impairment” and for “aggravation”:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
aggravation includes acceleration or recurrence.
Section 6(1) of the SRC Act relevantly provides:
Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
[…]
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
[…]
EVIDENCE
The following documents were admitted into evidence:
(a)The Applicant’s evidence as contained in the “Parties’ agreed bundle of documents for hearing” related to the Ganglion Claim (Exhibit 1);
(b)The Respondent’s evidence as contained in the “Parties’ agreed bundle of documents for hearing” related to the TFCC Tear Claim (Exhibit 2);
(c)Miscellaneous evidence as contained in the “Parties’ agreed bundle of documents for hearing” (Exhibit 3);
(d)Parties agreed summonsed documents as contained in the “Parties’ agreed bundle of documents for hearing” (Exhibit 4);
(e)248 pages of T-Documents (Exhibit 5);
(f)211 pages of Supplementary T-Documents (Exhibit 6);
(g)Leave records pertaining to the Applicant from 2014 to March 2021 (Exhibit 7);
(h)Extracts from AMA Guides relating to causation of TFCC tears and to ganglions (Exhibit 8); and
(i)Letter from Dr Sood to Dr Paul dated 2 March 2022 (Exhibit 9).
The following witnesses provided oral evidence at the hearing:
(a)the Applicant (via MS Teams);
(b)Dr Aman Sood, orthopaedic surgeon (via MS Teams);
(c)Mr Wayne Tripp, a director at ATO (via MS Teams);
(d)Dr Loretta Reiter, rheumatologist (via MS Teams).
Ms Margaret Whelan was listed to appear for the Respondent; however, the Applicant told the hearing that this witness would not be required for cross-examination and the Respondent agreed not to call this witness noting that implications could be drawn in relation to Ms Whelan’s witness statement contained in evidence at Exhibit 6. The Tribunal accepts Ms Whelan’s statement as the uncontested evidence she would have given had she appeared before the Tribunal.
The parties each filed a statement of facts, issues and contentions relating to both of the matters before the Tribunal.
During the closing submissions of the Respondent’s counsel, the Applicant’s counsel raised the rule in Browne v Dunn in relation to potential for inferences to be drawn from closing statements that the Applicant had not been afforded the opportunity to respond to. This issue is also considered by the Tribunal.

CONSIDERATION OF CLAIMS AND EVIDENCE

The Tribunal is satisfied on the basis of medical evidence and imaging that Ms Nguyen has a ganglion and a TFCC tear in her right wrist. While there appears to be some medical opinion in recent times that questions the diagnosis of the ganglion, the medical witnesses called to appear before the Tribunal were in accord in relation to the diagnoses.
The existence of the ganglion is supported by ultrasound reports dating from 31 March 2017[9] and in Dr Paul’s medical reports from 11 May 2017[10] although is questioned in the MRI report of 9 September 2020.[11] As Ms Nguyen’s GP and all of the specialists that have reported on her condition since 30 March 2017 have confirmed the existence of a ganglion, the Tribunal favours the evidence in support of the existence of a ganglion to the questions raised by the MRI report.
[9] Exhibit 5, T4, p18.
[10] Exhibit 4, p457.
[11] Exhibit 5, T72.
The existence of the TFCC tear is supported by an MRI report dated 9 September 2020,[12] and in rheumatologist Dr Fiona Goldblatt’s letter to Dr Proudman dated 24 September 2020.[13] Dr Aman Sood, orthopaedic surgeon, and Dr Loretta Reiter, rheumatologist, also supported the existence of the TFCC tear in their oral evidence.
[12] Exhibit 5, T72.
[13] Exhibit 5, T74.
As is often the case with claimed workplace injuries, the medical issues in dispute here revolve around causation. Dr Sood provided oral evidence that supported Ms Nguyen’s claims based on his clinical examinations of her, and his clinical experience. Dr Reiter provided oral evidence at the hearing that was largely based on medical literature and a video examination to identify causation, and which was not in support of the workplace sufficiently causing Ms Nguyen’s injuries.
The Respondent also called into question Ms Nguyen’s recollection of: the history of her conditions; the consistency and intensity of pain related to her conditions; and, the volume and intensity of her work.
The question of whether a person is suffering from a disease, or an injury other than a disease makes a difference in determining what test is used for the causal connection between the workplace and the injury.

Using the applicable test

The test of workplace contribution to a person’s condition is quite different dependent on whether it is an “injury (other than a disease)”, or a “disease”.
In the case of an “injury (other than a disease)” it is enough to demonstrate that it arose out of, or in the course of, employment – s 5A(1)(b) of the SRC Act. A “disease” must be contributed “to a significant degree” by the employee’s employment – s 5B(1) of the SRC Act. That is, a disease demands a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998)).[14]
[14] Australian Postal Corporation v Burch (1998) 85 FCR 264, 268; [1998] FCA 944.
The High Court decision of MRCC v May [2016] HCA 19 (May) sets out, using the former definition of “injury” in s 4(1) of the SRC Act, that: the word "injury" as used in paragraph (b) of the definition in s 4(1) is "a [sudden] and ascertainable or dramatic physiological change or disturbance of the normal physiological state" [52]; an "injury" does not require that the physiological change necessarily be a "sudden" one, but the suddenness of the change is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying disease [47]; "disease" and "injury (other than a disease)" comprise two separate but related subsets [42] which create different bases for liability [56]; if a person satisfied the test for a "disease" under para (a), there is no need to consider para (b), the test for "injury (other than a disease)" [44]; if a person does not satisfy the test for a "disease", the question then is whether they satisfy the test for an "injury (other than a disease)" [52]; for there to be an "injury (other than a disease)", there must be a physiological or psychiatric change and it is not sufficient that the applicant simply does not feel well [57] [67]; and, in determining the causation question for an "injury (other than a disease)", the evidence to be adduced will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events [62].
The Full Federal Court in Wuth v Comcare [2022] FCAFC 42 (Wuth), made it clear that the requirement for an “identifiable physiological change” applied only to an “injury (other than a disease)”, and not to a “disease”.[15]
[15] Wuth v Comcare [2022] FCAFC 42, [104]-[111].
For the purpose of identifying and using the correct test for each of the two claims in this matter, the Tribunal prefers first to determine if each of the injuries can be classified as a disease, then, if required, to consider whether they are each an injury (other than a disease).

The Ganglion Claim

The Ganglion Claim form provides Ms Nguyen’s description of the cause of her conditions which at that stage included pain in her right wrist, neck pain, bilateral shoulder pain and back pain. As discussed earlier, this description is in very similar terms to the description in the TFCC Claim form:
“these conditions resulted overtime [SIC] from excessive use of keyboard and mouse and prolonged period of sitting down at work… my role… involves sitting down in front of the computer for at least 7 hours and 21 mins per day with lots of typing and mouse work. This put a lot of pressure on my right wrist, neck, shoulders and back. As a result, I developed ganglion in my right wrist, neck pain, bilateral shoulder pain and back pain”.[16]

Is the ganglion a disease suffered by Ms Nguyen?

[16] Exhibit 5, p11.

In order for the ganglion to be a disease, firstly it must be an ailment or an aggravation of an ailment. The second condition for the ganglion to be a disease is that it was contributed to, to a significant degree, by Ms Nguyen’s employment with the Commonwealth.

Does the ganglion fit within the definition of an ailment?

In s 4(1) of the SRC Act ‘ailment’ is defined as any physical ailment, disorder, defect or morbid condition including those of sudden onset or gradual development.
Following investigations into Ms Nguyen’s reported right wrist pain from 2016, various imaging and medical reports have identified a ganglion in her right wrist.
An x-ray and ultrasound report in relation to Ms Nguyen’s right wrist dated 31 March 2017 by Dr K Funahashi, radiologist identifies a “Ganglion arising dorsally from the radiocarpal joint measuring 10mm detected”.[17]
[17] Exhibit 5, T4.
A right wrist ultrasound report dated 4 August 2017 by Dr J Robinson, radiologist, found:
“There is a ganglion arising from the dorsal aspect of the radiocarpal joint. It measures 11 x 3 x 8mm (previously 10 x 9 x 3mm).
It has internal echoes in keeping with complex ganglion but otherwise appears unchanged. There are no other findings of significance”.
On 18 September 2017 Dr Hee Im Goh, GP, referred Ms Nguyen to Dr Gregory Bain, hand surgeon, for further management of her right wrist ganglion which Dr Goh states in the referral has been present since September 2016 and confirmed on ultrasound.[18]
[18] Exhibit 4, p466.
On 15 June 2020 Dr Paul referred Ms Nguyen to Dr Tim Proudman, plastic and reconstructive surgeon, for “further management of symptomatic ganglion of R[ight] wrist”.[19]
[19] Exhibit 4, p492.
An ultrasound report of Ms Nguyen’s right wrist dated 17 June 2020 identified mild synovitis around the radiocarpal joint space with minimal vascularity and that there was also a 14 mm likely ganglion at the ulnar side of the radiocarpal joint.[20]
[20] Exhibit 5, T45.
The Tribunal is satisfied, based on the medical diagnosis, that Ms Nguyen’s ganglion meets the definition and is a physical ailment.

Was the ganglion contributed to, to a significant degree, by Ms Nguyen’s employment with the Commonwealth?

Causation in relation to whether a disease is disease was “contributed to, to a significant degree” by the employee’s employment as set out in ss 5B(2) and (3) of the SRC Act comes down to the facts as presented in the evidence and the consideration of the Tribunal as noted by Mortimer J in Comcare v Reardon [2015] FCA 1166 at [75]:
… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it.
Section of the SRC Act provides matters that must be taken into account 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. They include, but are not limited to:
•the duration of the employment
•the nature of, and particular tasks involved in, the employment
•any predisposition of the employee to the ailment or aggravation
•any activities of the employee not related to the employment
•any other matters affecting the employee’s health.
Section 5B(3) of the SRC Act defines “significant degree” as: “a degree that is substantially more than material”. In Gibson and Comcare, Deputy President Rayment discusses what will satisfy the “significant degree” test:
A degree which is substantially more than material will no doubt be present in a variety of cases. The sole cause will always satisfy the test, a major cause will often satisfy the test. A trivial cause will not satisfy the test. [21]
[21] Gibson and Comcare (Compensation) [2021] AATA 1183 at [67].
Ms Nguyen contends that the ganglion, and pain attributed to this, was caused exclusively by typing and using a mouse in the workplace at the ATO.
The Respondent contends that medical science does not support typing and mouse use as being the cause of Ms Nguyen’s ganglion. The Respondent also contends that medical causation opinions have been informed by Ms Nguyen’s narrative of the workplace and history of her pain, and that Ms Nguyen’s narrative lacks credibility.
As is often the case with compensation claims, the parties each have medical practitioners that support their argument.
In a written statement dated 20 April 2021 Ms Nguyen describes “The Accident” which she states caused her conditions in terms of a gradual onset of pain due to the use of her keyboard and mouse at work from 2011 culminating in time off from work due to constant and severe pain in mid-2020 when she was “undertaking a lot of intense processing for the ERS team”:
13.From memory, I first experienced pain in my right wrist in about 2011. The pain was on and off and was not constant. I did not think there was anything wrong with my wrist at the time, and certainly did not think I had suffered an injury or developed a condition. Time went by and the pain was the same; on and off. Then in mid-2013, the pain increased a little so I raised an incident report at work and as a result was allocated a vertical mouse to use at my workstation based on occupational health & safety reasons. As the pain was on and off, I did not put too much consideration into it and just assumed that it was just the heavy workloads at those moments and now with the vertical mouse, the pain should ease gradually.
14.Around 2015 to July 2016, I noticed that the pain in my right wrist became more constant and the duration of the aching was longer, particularly with a great deal of typing and mouse use. Around July 2016 when I lodged a worker compensation claim for peri-anal psoriasis, I also lodged a separate worker compensation claim for constant pain in the shoulders, upper back and neck and carpal tunnel like symptoms. This claim came before the Tribunal, and was settled in 2018.
15.At that time, for my wrist, I had x-ray and ultra sound which showed that I have ganglion in my wrist. I did lodge a claim for the ganglion at that time but the Registrar narrowed the issues to the shoulders, neck and upper back injury and removed the ganglion injury and stated that it is reserved for future claim if the pain continues. I was referred to see Professor Gregory Brain, Hand & Upper Limb Surgeon, for surgery. However, I did not go ahead with surgery because when I asked the surgeon, after I have surgery and if I continued with my job which involves a fair amount of typing, keying and mouse usage, would the ganglion come back. Professor Gregory Bain said mostly like it would. Hence, the reason why I did not go ahead with surgery.
16.An incident report was lodged at the time I lodged the worker compensation claims in 2016. An incident report was also lodged by my manager in 2020 when I reported to her my wrist condition resulting from the processing work in assisting the Early Release Superannuation (ERS) team as part of the COVID-19 measures.
17.In mid-2020, when I was undertaking a lot of intense processing for the ERS team, the constant pain in my wrist became much more severe, and felt more like a sharp stabbing pain, rather than the ache that it had been before. The pain in my wrist from doing this intensive work was really quite severe and it spread up my arm to my right shoulder which linked in to the chronic pain I have in my shoulders, upper back and neck resulting in constant migraine. The pain was so bad that I could not lift a full kettle of water with my right arm. I could not carry anything heavy (i.e. more than 2.5kg) with my right arm, which is my dominant hand/arm.
18.I then reported this pain to my GP, she referred me to see Dr Tim Proudman, Plastic and Reconstructive Surgeon. Dr Proudman then referred me to Dr Fiona Goldblatt, Rheumatologist, whom referred me for an MRI, X-Ray and Ultrasound. The results showed that I had tearing in my cartilage in the right wrist at the TFCC. My medical practitioners were of the opinion that this was caused by excessive and intensive keyboard and mouse usage.
19.In relation to my Ganglion condition, I completed a claim for compensation and rehabilitation on 10 July 2020, which was submitted to the ATO. The claim was issued with claim number 825114/4.
20.In relation to my TFCC tear, I completed a claim for compensation and rehabilitation on 8 October 2020.[22]
[22] Exhibit 1, A1.
Reporting of wrist pain
It is not in dispute that Ms Nguyen first reported her right wrist pain to her employer in 2013.
As a result of reporting wrist, as well as back and neck pain in July 2013, Ms Nguyen’s workstation was assessed by Advanced Personnel Management (APM).
A report by APM dated 30 July 2013 identifies the reason for referral as “Ms Nguyen reported experiencing ‘soreness in her right wrist’ in the previous week”. The report states that Ms Nguyen expressed concern that she may have overused her hand whilst typing and using the mouse. Ms Nguyen reported to the APM assessor that she had previously had similar pain symptoms, but they went away after two days. Ms Nguyen also reported that she had not consulted any health professionals regarding pain symptoms in her right wrist, and that she was not, at the time of the assessment, experiencing wrist pain as she had reduced her typing intensity. Resulting from the assessment, and relevantly to her wrist pain, Ms Nguyen was provided with an ergonomic keyboard and a vertical mouse as well as recommendations in relation to work tasks and breaks.[23]
[23] Exhibit 6, ST4.
The Respondent put to Ms Nguyen, and it was unchallenged, that Ms Nguyen did not seek medical assistance with respect to her wrist pain in 2013.
An initial needs assessment report was provided by Ms Simone Andrews, APM psychologist / rehabilitation consultant on 4 July 2016, resulting from Ms Nguyen lodging a workers’ compensation claim for psoriasis, ‘dry eye’, back and shoulder pain, and emotional / psychological issues. The report identifies Ms Nguyen’s self-reported conditions, noting that Ms Nguyen did not have a current medical certificate and had not seen her GP. The previous workstation assessment was mentioned in this report.[24]
[24] Exhibit 5, ST7.
A work capacity certificate dated 14 July 2016 provided by her GP, Dr Paul, provides diagnoses of “psoriasis in rectal area, back pain and neck pain”.[25]
[25] Exhibit 5, ST9.
Ms Nguyen lodged a workers’ compensation claim on 15 July 2016 for shoulder, neck and back pain with an injury date of 15 August 2015. Ms Nguyen asked soon after lodging the claim if the ATO could consider including carpal tunnel syndrome as part of the claim which the ATO reported at the time it was happy to do.[26]
[26] Exhibit 6, ST 20, p96.
On 21 July 2016 Ms Chelsea Amber-Scott, an occupational therapist from Recovre Pty Ltd, provided a further Workstation Assessment. The report notes: “Ms Nguyen reported multiple concerns including neck and bilateral shoulder pain, ‘permanent dry eye’, psoriasis affecting the buttock region, and previous right forearm / wrist discomfort which developed approximately two years ago”. In relation to the forearm and wrist pain, the report notes Ms Nguyen “currently experiences intermittent discomfort if typing intensively and / or for prolonged periods” and that there was minimal wrist or forearm pain reported at this time.[27]
[27] Exhibit 5, ST11.
On 9 August 2016, Dr Paul’s Work Capacity Certificate records Ms Nguyen as having a “New condition” of “probably right carpal tunnel syndrome” and the stated cause as “prolonged typing” which Ms Nguyen had stated to Dr Paul had occurred / developed on 7 August 2015. Dr Paul certified Ms Nguyen as unfit for work from 15 August 2016 to 30 September 2016 as a result of psoriasis in the rectal area, anxiety, neck and back pain, and probable right carpal tunnel.[28]
[28] Exhibit 5, ST13.
On 23 August 2016, Dr Paul provided a report to the ATO in relation to Ms Nguyen’s then workers compensation claims. While the focus of the report is on other conditions Dr Paul relevantly states of Ms Nguyen’s right wrist: “She also complains of symptoms of right carpal tunnel syndrome and was referred for nerve conduction study. She saw OT in her workplace and some mouse adjustments were done. However she still struggles with her right wrist/hand symptoms and needs further investigation +/- treatment”. Dr Paul also opines: “Her wrist problem is related to her work-typing”.[29]
[29] Exhibit 4, p445.
In a determination dated 7 September 2016 of the claim for compensation, Comcare found that it was not liable to pay compensation for the claimed injury of neck, shoulder and back pain. The determination states that no evidence had been provided in support of the claimed right carpal tunnel syndrome. The determination also notes that Ms Nguyen’s then manager, Mr Boris Bodanac, had discussed her performance and attendance at work in the months leading up to the claim, he had not been aware of any medical conditions preventing Ms Nguyen from performing her duties prior to the lodgement of the claim, and he did not agree with her claim that she was required to sit [in front of a computer] for seven to eight hours a day.[30] On 26 September 2016, Ms Nguyen requested reconsideration of this determination.
[30] Exhibit 6, ST20.
The reconsideration of the determination, dated 15 November 2016, affirms Comcare’s determination. The reconsideration reiterates that no evidence had been provided in support of the claimed right carpal tunnel syndrome.
Medical record of ganglion and causation
The ganglion was first identified in x-ray / ultrasound imaging of 31 March 2017 and then reported in subsequent medical diagnoses.[31]
[31] Exhibit 5, T4.
On 7 July 2020, Dr Paul provided an initial certificate of capacity for work citing as symptoms / diagnosis: synovitis of right wrist, ganglion of right wrist, neck, back pain and bilateral shoulder pain. The certificate stated that Ms Nguyen was unfit for work from 15 June 2020 “until right wrist surgery performed”.
Dr Proudman’s (a plastic and reconstructive surgeon) reports provide a more cautious description of causation than Dr Paul has previously offered.
On 8 July 2020, Dr Proudman reported that Ms Nguyen’s ganglion was not palpable, with surgery not strongly indicated. Dr Proudman referred Ms Nguyen to Dr Fiona Goldblatt, rheumatologist, for assessment; questioning whether the underlying synovitis had been caused by Ms Nguyen’s psoriatic arthritis.[32]
[32] Exhibit 5, T57.
On 5 August 2020, Dr Proudman provided a report to the ATO relevantly stating:
“Mrs Nguyen suffers from a painful right wrist with ultrasound showing synovitis of the joint with a small ganglion. The cause of this condition is unknown.
The prognosis for Mrs Nguyen’s current condition with respect to the ganglion is it will persist or a number of them will resolve, but as the diagnosis of her underlying problem is not entirely clear, it is not possible to give a firm prognosis for her condition.
On the balance of probabilities, the current condition suffered by Mrs Nguyen may have some factor related to her employment at the ATO; however, she may have a pre-existing or underlying condition that may be predisposing her to the hand synovitis and ganglion. This is still under investigation.
[…]
The further investigations and rheumatological opinion are appropriate to be undertaken.
No surgery is currently proposed until further facts are elucidated”.
In answer to the question raised by the ATO[33]: “If the current condition/s suffered by Ms Nguyen is related to her employment, please describe the degree and extent to which this employment contributes to the current presentation?” Dr Proudman responded: “I am unable to answer that question”.[34]
[33] See Exhibit 5, T61.
[34] Exhibit 5, T66.
On 14 August 2020, Dr Loretta Reiter, consultant rheumatologist, provided a report for the ATO having performed a video-based assessment on 6 August 2020 as well as a review of “available records and file data”. In respect of the physical examination of Ms Nguyen’s right wrist, Dr Reiter provides: “Examination of her right wrist revealed no swelling, with tenderness over the central aspect of her dorsal aspect and a full range of motion”. Dr Reiter opines: “[Ms Nguyen] continues to complain of right wrist pain and therefore most likely she still has a right wrist ganglion, which in no way is related to her employment with the ATO”. It is Dr Reiter’s opinion at the time of this report that Ms Nguyen’s condition is the natural progression of a pre-existing, congenital, constitutionally or underlying condition.[35]
[35] Exhibit 5, T69.
An MRI scan report prepared by Dr D Alcorn, radiologist, on 9 September 2020 raises questions about causation as to whether it is reactive, a stress response, or due to repetitive mild trauma and opines in relation to the ganglion:
“Small wrist joint effusion generally and I think this joint fluid and some mildly prominent joint recesses have continued to contribute to the ultrasound findings rather than a true ganglion, a small volar / radial ganglion possible. Whilst there is fluid at the wrist joint, no significant synovitis is seen. There is a mild patchy oedema in the radial side of the scaphoid waste, at the hook of hamate, and also the ulna side of the triquetrum. ?reactive ?stress response ?repetitive mild trauma. The tendons about the wrist appear grossly intact without overt tenosynovitis”.[36]
[36] Exhibit 5, T72.
The MRI scan report of 9 September 2020 also identified the TFCC tear for the first time. The response Dr Proudman received from Dr Goldblatt, who had the benefit of examining the MRI scan report, focussed on the TFCC tear and did not offer an opinion on the causation of the ganglion.[37]
[37] Exhibit 5, T74.
Following the MRI scan of 9 September 2020, Dr Paul’s reports also shift focus to the TFCC tear rather than the ganglion as the cause of Ms Nguyen’s pain.[38]
[38] Exhibit 5, T75.
On 27 November 2020, Dr Aman Sood, orthopaedic surgeon, diagnosed Ms Nguyen with: “Right wrist, symptomatic dorsal scapholunate ganglion, +/- a degree of myxoid degeneration and scapholunate ligament. Concomitant pathology also involves TFCC tear and ulnar abutment, +/- a degree of chondral damage, with mild synovitis”. This was the third time Dr Sood had assessed Ms Nguyen. Dr Sood stated that Ms Nguyen’s job duties “since February 200[1] …” were “… inherently high frequency repetitive natured, including typing, keying, mouse use etc.”. Dr Sood goes on to describe Ms Nguyen reporting right wrist pain in 2014 and the condition persisting with intermittent aggravation until sustaining significant further aggravation in June 2020 which Dr Sood puts down to Ms Nguyen’s seconded duties requiring “even higher frequency use of typing, keyboard, calling clients etc.” Dr Sood stated in this report that examination findings, Ms Nguyen’s reported symptoms, and her positive response to cortisone were all in keeping with her symptomatic pathology being attributable to dorsal wrist ganglion / scapholunate pathology to be her symptomatic pathology attributable to work injury, with no non work related contributing factors identified. Dr Sood stated that he disagreed with Dr Reiter’s findings that the condition was solely degenerative stating that if that were so the condition would be expected to affect both wrists.[39]
[39] Exhibit 6, ST42.
A further supplementary report dated 19 August 2021 was provided by Dr Reiter offering further consideration of diagnosis and causation of Ms Nguyen’s conditions. Dr Reiter agreed with Dr Sood’s diagnosis as stated in his report of 27 November 2020 but did not agree with Dr Sood’s opinion in relation to causation. As well as maintaining her previously stated position that neither the ganglion nor the TFCC tear were caused by the workplace; Dr Reiter referred to the ‘AMA Guides to the Evaluation of Disease and Injury Causation’ (the Guides)[40] which concludes that there is insufficient evidence that a range of occupational and nonoccupational risk factors can cause ganglions of hand and wrist: combination of risk factors (e.g. force and repetition, force and posture); vibration; highly repetitive work alone or in combination with other factors; forceful work; awkward postures; keyboard activities; cold environment; length of employment; age; BMI; gender; biopsychosocial factors; diabetes; dominant hand. While the publication indicates that the exact cause of ganglions is uncertain, the most popular theory suggests they form after trauma to or degeneration of the tissue layer responsible for producing synovial fluid.
[40] AMA Guides to the Evaluation of Disease and Injury Causation 2^nd Edition by Dr Mark Melhorn et al, (pages 247 to 248 for wrist ganglion) extract at Exhibit 8.

On 8 November 2021 Dr Richard Pope, consultant orthopaedic surgeon, provided a report to the ATO based on an assessment conducted on 2 November 2021. Dr Pope provided a diagnosis described as synovitis and the TFCC tear adding: “There may be a very small ganglion contributing to her [Ms Nguyen’s] symptoms”. A supplementary report by Dr Pope dated 24 December 2021 only diagnosed the synovitis and TFCC tear, not the ganglion.
Both Dr Sood and Dr Reiter gave oral evidence and were cross-examined on their evidence at the hearing.
Dr Sood, Ms Nguyen’s treating orthopaedic surgeon, told the Tribunal that her condition was as a result of her working life, mainly sitting at a computer using a mouse and keyboard at the ATO over about 21 years. Dr Sood was questioned about this in cross examination as his report from November 2020 had specifically attributed Ms Nguyen sustaining significant further aggravation in June 2020 as due to the seconded duties requiring “even higher frequency use of typing, keyboard, calling clients etc.” Dr Sood responded that the cumulative effect of the work or a change in the form of the work may be enough to cause an aggravation.
Dr Sood told the Tribunal that high frequency typing and mouse work would lead to myxoid degeneration which led to the creation of fluid causing the creation of the ganglion. He also suggested that this degenerative cause was the process described in the first paragraph of page 247 of the Guides. Dr Sood’s approach to diagnosis and causation was what he described as based on a holistic view of the evidence put to him to which he applied his medical experience and expertise as an orthopaedic surgeon specialising in upper limbs. He also told the Tribunal that his clinical observations and the observations of his colleagues was that occupational duties involving repetitive high frequency work such as Ms Nguyen’s duties with the ATO would be considered a significant contributing factor to the pathology of a ganglion. Dr Sood also noted that cortisone injections at the site of the ganglion had significantly improved symptoms temporarily. Dr Sood told the Tribunal that dorsal ganglions were likely to be symptomatic even when they are small.
Dr Reiter’s evidence was that Ms Nguyen’s right wrist pain could be caused by the ganglion but that the ganglion could not have been caused by typing or mouse use and that there was no evidence of any other occupational risk factors in Ms Nguyen’s workplace.
Dr Reiter discussed the Guides, and in particular the finding that occupational risk factors with insufficient causal evidence includes: combination of risk factors (e.g. force and repetition, force and posture); highly repetitive work alone or in combination with other factors; keyboard activities; awkward postures; and, length of employment.
The introductory paragraph of the Guides states, inter alia: “The most popular theory suggests they [ganglions of the hand or wrist] form after trauma to, or degeneration of the tissue layer responsible for producing synovial fluid”.
Dr Reiter described in detail the movements associated with keyboarding and mouse use and how these static wrist movements are not associated with Ms Nguyen’s ganglion. Dr Reiter did not observe Ms Nguyen typing or using a mouse when she assessed her conditions.
Dr Sood described positive ulnar variance to the Tribunal. He opined that its cause was congenital and that the slightly longer ulnar bone caused a “somewhat increased risk of pathology”. If the wrist is held in ulnar variance, it will be reflected in the ulnar movement causing slight deviation so that when typing or using a mouse it puts extra pressure on the ulnar. He referred to Ms Nguyen’s stature and hand size which together with his observations of her keyboarding and mouse use identified that she moved her hands from side to side with ulnar deviation, flexion and extension movements. Dr Sood described repetitive, high frequency typing as duties that can create accelerated wear and extra fluid forming which becomes a ganglion.
Dr Sood was asked to comment on the reasons his views differ in terms of causation from those of Dr Reiter. He opined that a person cannot keep their wrist in a static position when typing at a fast pace. He also put to the Tribunal that while the Guides state there is insufficient evidence for a causal link, that does not mean there is no evidence. In his practice and in meetings he attends, Dr Sood stated that it is considered that there is a link between ganglions and work.
Dr Reiter did not agree with this proposition in relation to the ganglion. Dr Reiter held the view that Ms Nguyen, even with some ulnar deviation, did not move her wrist sufficiently to cause her ganglion to become symptomatic or more symptomatic. Dr Reiter did concede, in cross-examination, that in theory an existing ganglion communicating with the joint could release fluid into the ganglion.
It is not unusual for specialists to hold different views in relation to causation. It is often the case that: one specialist accepts their patient’s description of history and causation unless there is evidence to the contrary; another specialist requires evidence before accepting a causal link. Both of these approaches generate their own basis for the medical practitioner to draw from. In this matter, Dr Paul’s and Dr Sood’s approaches lean toward the first camp relying of the patient’s description, with Dr Reiter’s and Dr Proudman looking for more medical evidence. The Tribunal’s role is to come to its own conclusion in these matters with the benefit of the medical experts views, amongst other evidence of the circumstances, to inform the conclusion.
Ms Nguyen’s evidence relating to causation of the ganglion
While the effect of a disease or aggravation of a disease does not need to be significant, to be a disease as defined in s 5B of the SRC Act it is necessary that the employment is a significant cause of the ganglion.[41]
[41] See Mellor v Australian Postal Corporation [2009] FCA 504; Federal Broom Pty Ltd v Semlitch (1964) 110 CLR 626; and Commonwealth of Australia v Beattie (1981) 35 ALR 369.
On 4 February 2022, Ms Nguyen provided a supplementary statement purporting to clarify paragraph 16 of the statement she had provided on 20 April 2021 (see paragraph 56 above). The content of this supplementary statement is clearly clarifying paragraph 17 of the April 2021 statement rather than paragraph 16 as stated:
I refer to paragraph 16 of my statement dated 20 April 2021. I wish to clarify that, when I stated that I was “undertaking a lot of intense processing for the ERS team”, I was not suggesting that I was doing any more work than I had previously in my substantive role, nor was I suggesting that I was doing any more work than any of my colleagues. I was simply indicating that the work I was undertaking whilst assisting the ERS team was different to that I had been doing in my substantive role, in that it placed more strain on my wrist.[42]
[42] Exhibit 1, A6.
In oral evidence Ms Nguyen described her use of the keyboard and mouse:
“When I use the keyboard and the vertical mouse (since it was allocated to me in 2013) I have both wrists resting on the table. To type I slide my wrist across to reach where I touch the keys. To reach the function keys I lift my right arm to reach the keys. If I need to scroll down the page, I lift my right arm to the vertical mouse to reach the scroll part. If I need to reach the shift button further to the right or left, I rotate my wrist lightly so that my little fingers can reach the keys. With the vertical mouse I rotate my right hand, which is wrapped around the mouse, so that my little finger is touching the table. In reaching keys I lift my wrist sometimes in a solid way, and sometimes bending it to reach the keys.”
In oral evidence Dr Reiter noted that Ms Nguyen was not at work when her pain debilitated her but lifting a kettle at home. Dr Reiter’s evidence had been that for a ganglion to be caused or aggravated the literature proffered there would need to be some trauma or loading of the wrist.
While Dr Reiter suggests that there is little opportunity for a person to move their wrist sufficiently while typing and using a mouse to cause a ganglion to become symptomatic or more symptomatic, she did not observe Ms Nguyen performing her work functions. On the other hand, Dr Sood did observe Ms Nguyen typing and opined that it was her work that caused the ganglion.
Evidence suggests that the ganglion injury has developed over a number of years, with the size and nature of the ganglion changing and the intensity of pain associated with it varying and increasing over time although not in a strict linear fashion. While there is also evidence that there may be micro traumas in the nature of injuries in the simpliciter sense, this is an ailment that can best be identified as a disease.
Where probative medical opinions diverge it is reasonable for the Tribunal to take all of the facts into account in coming to a decision.[43]
[43] See E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238 at [242]; and Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at [579].
The Tribunal is satisfied on the weight of the medical evidence together with the reports provided by occupational therapists and Ms Nguyen that typing, and mouse use could be the cause of Ms Nguyen’s ganglion injury, but the test requires that the contribution by employment not be left in the area of possibility and conjecture.[44] The significant degree causal threshold must still be met.
[44] See Member Taglieri in Reardon and Comcare [2015] AATA 360 at [37].
The matters set out in s 5B(2) of the SRC Act must be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment with the Commonwealth.
The duration of the employment
It is not in dispute that Ms Nguyen has been employed by the ATO for the vast majority of her working life, a period of about 20 years.
There is certainly little chance that employment other than her employment with the Commonwealth at the ATO could have caused or contributed to Ms Nguyen’s ganglion.
The Tribunal is satisfied that should employment be found to have a significant causal relationship with Ms Nguyen’s ailment, based upon her employment history, it would be her employment with the Commonwealth that was the cause of the ailment. This militates toward a finding that her ATO employment was a significant contributor.
The nature of, and particular tasks involved in, the employment
While there has been some questioning of Ms Nguyen’s evidence in relation to changes in her keying and mouse use when she changed roles in mid 2020, it has not been disputed that Ms Nguyen’s employment at the ATO has involved her working at a desk in front of a computer using a keyboard and a mouse for most of her working day. There is also no suggestion that Ms Nguyen’s employment has involved any work that could be the cause of a singular trauma to her wrist.
Ms Nguyen’s managers, Mr Bodanac, Ms Whelan, and Mr Tripp; all expressed views that Ms Nguyen’s role was mainly computer based but was not intensive as Ms Nguyen claimed.
Much was made, by the Respondent, of Ms Nguyen’s shifting recall of events. Examples included:
·Ms Nguyen’s original statement of 20 April 2021 compared with the amended statement dated 4 February 2022, after she had seen the statement of Mr Tripp:
Original statement excerpt:
“In mid-2020, when I was undertaking a lot of intense processing for the ERS [Early Release Superannuation] team, the constant pain in my wrist became much more severe, and felt like a sharp stabbing pain, rather than the ache that it had been before.”[45]
Amended statement excerpt:
“I wish to clarify that, when I stated that I was “undertaking a lot of intense processing for the ERS team”. I was not suggesting that I was doing any more work than I had previously in my substantive role, nor was I indicating that I was doing any more work than any of my colleagues. I was simply indicating that the work I was undertaking whilst assisting the ERS team was different to that I had been doing in my substantive role, in that it placed more strain on my wrist.”[46]
·That Ms Nguyen told the Tribunal that she had constant wrist problems since June 2016 for which she lodged a workers’ compensation claim, but the Respondent puts that an Initial Needs assessment Report of 11 July 2016 describes: a permanent ‘dry eye’ condition; a skin condition in her lower torso; shoulder pain; emotional and psychological issues – with no mention of wrist pain. The Respondent also questioned Ms Nguyen’s memory of events as they had no evidence of a compensation claim in relation to her wrist in 2016. The Tribunal notes that there was evidence of such a claim.
·Under cross examination Ms Nguyen stated that she had difficulty remembering exactly when her right wrist pain had become constant, but she believed that the pain was on and off until about 17 June 2020 when the pain became constant. Ms Nguyen mentioned a number of dates in June 2020 when her wrist pain became constant and was particularly vague in her evidence about how many days she had been involved in the work with the ERS team.
[45] Exhibit 1, p23.
[46] Exhibit 1, p79.
Ms Nguyen described her job as one which required high volumes of intensive typing and mouse use and that this was the reason for her pain, not just in her right wrist but also in her back, shoulder and neck. The Respondent put to her that her managers: Boris Bodanac; Margaret Whelan; and Wayne Tripp; had all indicated that Ms Nguyen’s work, while being mainly keyboard and mouse based, was not high volume and intensive.
It was put to Ms Nguyen by the Respondent that in his Comcare Statement of Facts, related to a Comcare claim of 8 July 2018, Mr Bodanac states:
“The employee over the last 12+ months has not been given excessive workloads or computer based work that necessitated her having to sit for long periods without breaks. The ATO encourages employees to take recuperative breaks, and management have advised this employee to also take breaks as necessary.”[47]
[47] Exhibit 6, p75.
While this statement was not specifically disputed by Ms Nguyen, she did continue throughout her evidence to tell the Tribunal to the effect that her work was high volume and intensive.
Ms Whelan’s statement of 17 February 2022 supports that Ms Nguyen’s work at the ATO from 12 February 2018 until June 2020 was to carry out research, provide written technical advice, and interpret and apply Australian tax laws requiring Ms Nguyen to be in front of a screen using a mouse and keyboard all day. Ms Whelan’s statement noted that while Ms Nguyen had mentioned some health issues causing her to take recurring sick leave and that these issues included a wrist injury, she had not indicated that the wrist injury was work related.[48] Ms Whelan was a witness to be called by the Respondent. The Applicant chose not to cross examine Ms Whelan on her evidence and it was agreed that she would not be called. The Tribunal is satisfied that Ms Whelan’s evidence as provided in her statement is uncontested. Ms Nguyen had received the statement and made a decision not to contest it.
[48] Exhibit 2, R4.
In Mr Tripp’s statement of 25 February 2022, he states in relation to the work Ms Nguyen undertook between 2 and 12 June 2020:
In my opinion even though [Ms Nguyen] was not a high performing ERS team member, it was not overly strenuous or excessive work.[49]
[49] Exhibit 2, R5.
Under cross examination Mr Tripp modified the amount of time Ms Nguyen would be required to use a mouse and keyboard upwards from 2.5 hours a day. He did, however, state that Ms Nguyen had only completed 40 cases over the nine day period she had completed any work for his team when “other team members generally averaged 15 to 25 cases per day, with some completing 40 to 50 cases per day”.[50]
[50] Exhibit 2, R5.
The Tribunal found that there was a great deal of inconsistency in Ms Nguyen’s evidence in relation to the timing of her wrist pain and how this is reflected in treatment and reporting in the workplace. The above is only a small sample of the evidence indicating that Ms Nguyen was a poor historian.
While Ms Nguyen was heavily cross examined on the truth of her evidence, it was not submitted to the Tribunal that s 7(7) of the SRC Act applies in this matter and nor does the Tribunal believe that Ms Nguyen’s evidence met the level of intent that fits within the description of wilful and false representation despite aspects of her evidence lacking credibility. The Tribunal does, however, prefer to rely on other sources where they are available, than to Ms Nguyen’s evidence in relation to the volume and intensity of keyboard and mouse work undertaken by Ms Nguyen.
The workplace assessment of 21 July 2016 accepted that Ms Nguyen was typing and using her mouse for the majority of the day, as did subsequent reports that referred back to this one. The Tribunal puts some weight on the reporting of occupational therapists in assessing the requirements of an occupation that has been observed. In this case, the workplace was even modified to reduce the accepted negative impact of the work on Ms Nguyen.
Dr Sood’s oral evidence included discussion of not being able to “do typing at a fast pace with wrist in a static position” and “repetitive, high frequency typing” being significant contributors to Ms Nguyen’s ganglion.
Dr Reiter’s oral evidence was that while it may be possible for somebody using their wrist awkwardly over 20 years to develop a ganglion, this is not supported by the medical evidence. Dr Reiter’s written report of 19 August 2021 provides the opinion that Ms Nguyen’s ganglion has “not in any way been caused, exacerbated or aggravated by keying or mouse work as the wrist is in a static position”.[51]
[51] Exhibit 7, p4.
The Tribunal finds Dr Reiter’s evidence to be of limited value in this matter because she had not observed the method used by Ms Nguyen when she was using a keyboard and mouse. The Tribunal favours the combined oral evidence of Dr Sood and Ms Amber-Scott’s report based on her assessment of the workplace in relation to whether the nature of, and particular tasks involved in, the employment with the ATO meet the threshold as a significant contributor to Ms Nguyen’s ganglion. The Tribunal notes that Dr Reiter’s is the only medical opinion before the Tribunal that specifically excludes Ms Nguyen’s work as a causal factor for the ganglion.
Predisposition of the employee to the ailment or aggravation of the ailment
Member Webb in Su v Comcare,[52] expressed the requirement of “contribution to a significant degree” by approving Justice Finn’s approach in Comcare v Sahu-Kahn [2007] FCA 15 where more than one contributor can meet the significant degree threshold:
When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (Footnotes omitted).
[52] Su v Comcare [2011] AATA 934 at [5].
Dr Reiter put to the Tribunal that all of Ms Nguyen’s ailments or aggravations of her ailments are genetically preordained. Dr Reiter described the imaging of 4 November 2020 identifying ulnar positivity and the potential this has to harm the wrist. In her supplementary report dated 13 October 2020, Dr Reiter states: “These [Ms Nguyen’s ganglion and TFCC tear] are all mechanical issues, due to her own intrinsic structure of her right wrist, which is congenital and has no bearing to the relationship of her employment with the Australian Taxation Office”. Dr Reiter goes on to identify that any increase in intensity of use of the right wrist, particularly where the wrist was under load, as well as ulnar deviation of the wrist, could cause chronic right wrist pain.[53]
[53] Exhibit 4, p636.

Dr Sood put that there are no non-work-related contributing factors identified pertaining to Ms Nguyen’s right wrist pathology. Dr Sood also told the Tribunal that Ms Nguyen’s small hands and wrist meant that it was necessary for her to move her hands and wrists beyond the normal range while keying and using the mouse, leading her keying and mouse work to be significant causes of her ganglion.
Dr Proudman’s report of 5 August 2020 notes that Ms Nguyen may have a pre-existing or underlying condition that may be predisposing her to hand synovitis or ganglion.[54]
[54] Exhibit 5, T66.
There does, in this case, appear to be physical predispositions that are at play in causing Ms Nguyen’s ganglion, however, the Tribunal is satisfied that the workplace contributes to her ganglion, and the degree of that contribution is significant.
Non-employment related activities
Ms Nguyen put to the Tribunal that she did not participate in activities outside of work that could contribute to the ailments or their aggravation.
Dr Pope records that Ms Nguyen is able to drive a car and do some household activities at home including light gardening and shopping.[55]
[55] Exhibit 1, A3.
While Dr Reiter pointed out that it was pain caused by the act of lifting a kettle at home that drove Ms Nguyen to put in a compensation claim, there was no suggestion that this was the cause of Ms Nguyen’s ganglion.
There is nothing before the Tribunal to suggest Ms Nguyen participates in non-employment related activities that could have caused her ganglion.
Any other matters affecting the employee’s health
The medical evidence of Dr Paul, Dr Pope and to a lesser extent Dr Sood rely on Ms Nguyen’s history of the timing and intensity of her wrist pain and her description of the volume and intensity of her typing and mouse work in her employment as the causal factor.
Dr Sood had the benefit of observing Ms Nguyen demonstrating the way she uses a keyboard and mouse and, on his evidence, Ms Nguyen’s wrists are not static while performing the keyboarding and mouse work she does for most of the day at the ATO.

Is the ganglion a disease or an aggravation of a disease?

Medical opinions, according to both Dr Sood and Dr Reiter, vary in relation to how ganglions develop. Dr Sood’s opinion included gradual development due to the nature of work through to a build up of micro-trauma’s caused by the work. The first is more suggestive of a disease and the second is more in the nature of an injury simpliciter.
Both Dr Sood’s and Dr Reiter’s opinions were in agreement that a ganglion could cause pain.
The evidence of Dr Reiter based on the Guides, in combination with the imaging, indicates that there are some congenital factors in Ms Nguyen’s right wrist that may predispose her to the ganglion ailment or aggravation of it and that her opinion based on her experience informed by the Guide is that the workplace cannot be the cause of the Ganglion.
The Guide uses epidemiological studies of the distribution and determinants of disease in human populations to identify factors of causation. Spigelman CJ in Seltsam Pty Ltd v McGuinness cautions against placing too much weight on these studies as they do not consider specific causation in individuals, and these studies apply a scientific test rather than a balance of probabilities.[56]
[56] Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262 at [271] - [272].

CONCLUSION – GANGLION CLAIM

The Tribunal accepts that Ms Nguyen has a congenital condition that predisposes her to hand synovitis or ganglion as described by Dr Proudman and Dr Reiter.
Dr Sood’s opinion, informed by observation of Ms Nguyen’s typing and mouse use, that her work could have significantly contributed to an aggravation of an underlying condition, carries significant weight. As discussed earlier, Dr Sood’s opinion is also informed by his experience that employment which involves a lot of typing and mouse use is a significant factor in the development of ganglion. The length of Ms Nguyen’s employment and the nature of her employment also add weight to there being a significant employment causal relationship in the absence of non-employment related, or other employment history factors. The Tribunal is satisfied that the work itself was substantially more than material in causing the ganglion.
For the reasons stated, the Tribunal is satisfied that the ganglion is a disease which progressed over a long period of time and was contributed to, to a significant degree, by Ms Nguyen’s employment with the ATO.

The TFCC Claim

An MRI scan report of Dr D Alcorn dated 9 September 2020 identified “tearing of the radial margin of the TFCC and associated mild sclerosis and oedema in the adjacent lunate”. Subsequent medical reports have included this diagnosis.
Is the TFCC tear a disease suffered by Ms Nguyen?
It is uncommon in the nature of tears that they are a disease, as tears usually develop as a result of either wear or trauma although tears can also be caused by repetitive actions. This is borne out by the medical evidence discussed below.
There was nothing in the medical evidence presented to the Tribunal that indicated that the TFCC tear was a disease. The evidence in relation to the TFCC tear causation fell broadly into two camps: that of Dr Sood, who indicated that it was as a result of Ms Nguyen’s typing and mouse work; and Dr Reiter who opined that it could only be as a result of congenital factors and age related degeneration in the absence of acute trauma.
In relation to the TFCC tear, Dr Paul in her work capacity certificate dated 25 September 2020 notes: “[Ms Nguyen] didn’t have any trauma to right wrist to cause the tear besides her work at ATO”. [emphasis added]
It is sufficient at this stage, based on the medical evidence presented, to say that the Tribunal is not satisfied that the TFCC tear is a disease and so is considered here on the basis that it may be an injury simpliciter (that is, a physical or mental injury other than a disease).
Is the TFCC tear an injury (other than a disease)?
In Military Rehabilitation and Compensation Commission v May (May), French CJ, Kiefel, Nettle and Gordon JJ discussed when a condition may qualify for characterisation as an “injury”,[57] the majority stated:
45‘Injury’ in para [5A(1)] (b) is used in its ‘primary’ sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if ‘something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word’.
46That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an ‘injury’ in the primary sense.
47However, as the Full Court correctly held, ‘suddenness’ is not necessary for there to be an ‘injury’ in the primary sense. A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48That an ‘injury’ in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
‘[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word.’[58]
[emphasis added]
[57] Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, 480–481; [2016] HCA 19.
[58] Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45.
The High Court noted that, when used in the context of “injury (other than a disease)”, the term “injury” was being used in its primary sense and required “precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change”.
In order for the TFCC tear to be an injury in the primary sense or injury simpliciter, it must be a physical or mental injury arising out of, or in the course of, Ms Nguyen’s employment with the ATO.
Although time passes, and there is no question people age while they are in the workplace, aging in itself is not an injury.
In oral evidence Ms Nguyen stated that her wrist symptoms and capacity has been of varied intensity over the period between 2011 and 2020 but that the pain had been higher in intensity and consistency since mid-2020. She indicated nothing in the nature of an acute trauma, or any series of such events that may have caused the TFCC tear.
In a letter to the occupational health and safety representative of the ATO on 15 June 2020, Dr Paul described Ms Nguyen’s increased pain in her right wrist stating “…it’s even worse since she is helping with ‘priority work’ in ATO. I referred her to see a Hand Surgeon regarding her right wrist. It’s also recommended to see a hand therapist”.
Dr Sood’s oral evidence was that the TFCC tear resulted from an underlying positive ulnar variance as compared with the radius causing Ms Nguyen’s right wrist ulnar to drift toward the TFCC.
Dr Reiter in her oral evidence and written reports refers to the Guide and opining that Ms Nguyen’s TFCC tears are usually age related degeneration or from moderate trauma. The Guide sets out that “TFCC tears noted on MRI ... can occur from trauma or age-related degeneration. Current thought is that the common mechanisms of injury for traumatic tears are twisting with palmer rotation (extension-pronation force to an axially load wrist, eg when landing on outstretched hand), forceful twisting (dorsal rotation injury), or pulling movements”.[59]
[59] AMA Guides to the Evaluation of Disease and Injury Causation 2^nd Edition by Dr Mark Melhorn et al, (page 270).
Dr Sood opined that in Ms Nguyen’s case, if the wrist was held in ulnar deviation in the context of her positive ulnar variance, it would place more pressure on the TFCC and impact on it like a mallet. The more that occurred, the more wear there would be. Work duties such as keying and mouse use could cause ulnar deviation which in the setting of positive ulnar variance such as Ms Nguyen’s and over time this would lead to the TFCC tear due to attrition.
Dr Sood’s opinion of the method by which Ms Nguyen’s TFCC tear could have been caused is not supported by the descriptions of acute trauma identified as causes (other than aging) contained in the Guide and supported by Dr Reiter. At the hearing, and in his reports, Dr Sood provided no supporting evidence for his opinion that Ms Nguyen’s ulnar would impact on her TFCC like a mallet.
Dr Paul’s opinion informed, it seems, only by Ms Nguyen’s reported history, that there was nothing apart from Ms Nguyen’s work that caused her TFCC injury, adds little if anything to Ms Nguyen’s case.
The Guide as referred to by Dr Reiter provides some relevant examples of the types of the acute traumas that can cause a TFCC traumatic tear in cases where there is positive ulnar variance:
Axial loading can occur at home, at work, or when playing sports, eg, swinging a bat or hitting a ball with a racquet. The latter athletic activities can cause marked ulnar deviation, with increased compressive loading on the TFCC, which is further increased if there is positive ulnar variance (ulnar longer than the radius).[60]
[60] AMA Guides to the Evaluation of Disease and Injury Causation 2^nd Edition by Dr Mark Melhorn et al, (page 270).
Ms Nguyen’s description of her duties was not in keeping with ulnar deviation such as in the example given in the Guide. Even when Ms Nguyen undertook work with the ERS team she only described the work as typing and using the mouse with less opportunity to rest in between.
The Tribunal favours Dr Reiter’s opinion based on her experience and supported by the Guide, to the opinion expressed by Dr Sood in relation to causation of TFCC tears. Unlike with the ganglion, Dr Sood’s opinion about causation of TFCC tears is not supported by any other evidence presented to the Tribunal.
Did the injury arise out of or in the course of employment?
In Roncevich and Repatriation Commission, the majority judgement of the High Court found in relation to arising out of defence service:
… whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connection must however be a causal and not merely temporal one.[61]
[61] Roncevich and Repatriation Commission [2005] HCA 40 at [125].
The term ‘in the course of employment’ is relevant in situations where a person is engaged in activities that are not their actual work but are related to their work in a way that the employer induces or encourages them to undertake the activities.[62]
[62] Comcare v PVYW 2013 AWR 20-347; [2013] HCA 41 at [38].
There is no evidence before the Tribunal that Ms Nguyen was involved in activities that fit the description of the term ‘in the course of employment’.
There is, however, an undoubted link between Ms Nguyen’s experience of pain and her workplace as has been discussed in relation to her ganglion. She also has expressed that she feels pain outside the workplace, and it was in lifting a kettle that her pain was so severe that she attended her GP and sought time off work in July 2020.
Nothing that was put before the Tribunal differentiated between the pain felt by Ms Nguyen as a result of the ganglion, and the pain resulting from the TFCC tear. Dr Sood did opine that even a small ganglion could cause the type of pain being experienced by Ms Nguyen.

CONCLUSION TFCC CLAIM

Based on Ms Nguyen’s description of her work, there was nothing that satisfies the Tribunal that she was subject to the type of trauma at work that could have caused her TFCC tear and that is required for the Tribunal to find that the injury arose out of her employment with the ATO.
For these reasons, the Tribunal is not satisfied that the TFCC tear is an injury (other than a disease).
Browne v Dunn
For completion, the Tribunal will consider the request from Ms Battiste, the Applicant’s counsel, for the Tribunal to consider the rule in Browne v Dunn, presumably in relation to both claims.
The rule in Browne v Dunn requires that in any matter in which evidence in chief is being contradicted, the witness that has put the evidence must have an opportunity to explain the contradiction.[63] While the rules of evidence do not apply to the Tribunal, the principle in Browne v Dunn is often particularly important in the general jurisdiction in ensuring procedural fairness.
[63] Browne v Dunn (1893) 6 R 67.
Applicant’s counsel in its closing remarks stated:
I would like to raise the issue of Browne and Dunn. Although he hasn’t quite come out and said it, it appears my learned friend inferred that there is some kind of other motivation or other factor influencing Ms Nguyen’s bringing of this claim, than her simply having these conditions and the resulting pain.
Noting that there has been no challenge to her evidence as to her subjective experiences of pain or that it has changed in the post June 2020 period, and it was never put to her that there was this ulterior motivation in the bringing of that claim, and I say with respect to that, there hasn’t been compliance with Browne and Dunn – and I appreciate that the Tribunal isn’t bound by the rules of evidence – but Browne and Dunn is not just a rule of evidence it is an issue of procedural fairness.
It is one that makes a contribution to the assessment of a witness’s evidence, and if these matters had been raised with Ms Nguyen, they are matters she could well have been able to respond to, or point to further evidence, or raised new matters addressing them.
The Tribunal is satisfied that Ms Nguyen’s evidence was thoroughly cross examined and she was given every opportunity to respond to the questions raised about her descriptions of pain pre and post June 2020. The Tribunal finds nothing in the Respondent’s closing remarks that had not been made clearly apparent to Ms Nguyen that could impute anything that she did not have an opportunity to respond to.
At the hearing the Tribunal offered the Applicant’s counsel the opportunity for the Applicant to be recalled if they believed there was something that had been put to the Tribunal that the Applicant had not been allowed an opportunity to respond. The Applicant’s counsel did not accept that offer.
For these reasons, the Tribunal finds there was no imputation made that was not put to Ms Nguyen, and therefore there is no denial of procedural fairness. The Browne and Dunn rule does not require any further action in this matter.
Costs
The Applicant in this matter has requested that the Tribunal consider costs.
The discretionary power of the AAT to award costs is set out in s 67 of the SRC Act.
Of the two claims before the Tribunal, the applicant has only been partially successful in one of the two matters – case number 2020/7539 as it relates only to the ganglion. For this reason, the Tribunal does not consider it appropriate to award costs.

OVERALL CONCLUSION

Ms Nguyen has a ganglion of dorsal scapholunate in her right wrist which meets the definition of disease under s 5B of the SRC Act and which was the subject of a reviewable decision of 12 November 2020 – case number 2020/7539.
Ms Nguyen’s diagnosed Triangular Fibrocartilage Complex tear with ulnar abutment (right) has not been found to be a disease or an injury (other than a disease) under s 5B or s5A of the SRC Act respectively and which was the subject of a reviewable decision of 14 January 2021 – case number 2021/0287.
The Tribunal does not exercise its discretion under s 67 of the SRC Act to award costs.

DECISION

The reviewable decision with respect to Ms Nguyen’s Ganglion Claim is set aside and in substitution I find that Comcare is liable under s 14 of the SRC Act with respect of that claim as it relates to the ganglion alone, not the other injuries listed on that claim.
The reviewable decision with respect to Ms Nguyen’s TFCC Claim is affirmed.

I certify that the preceding one-hundred-and-seventy-seven [177] paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

.............................[sgnd]..................................
Associate

Date of Decision:

29 September 2023

Date of Hearing:
2, 3 and 4 May 2022

Solicitor for the Applicant:

Counsel for the Applicant:

Mr Joel Tucker
Slater & Gordon

Ms Josephine Battiste

Solicitor for the Respondent:

Counsel for the Respondent

Ms Kate Watson
HBA Legal

Mr Charles Clark

Date of Decision:	29 September 2023
Date of Hearing:	2, 3 and 4 May 2022
Solicitor for the Applicant: Counsel for the Applicant:	Mr Joel Tucker Slater & Gordon Ms Josephine Battiste
Solicitor for the Respondent: Counsel for the Respondent	Ms Kate Watson HBA Legal Mr Charles Clark