Oliver and Comcare (Compensation)

[2021] AATA 86

Oliver and Comcare (Compensation) [2021] AATA 86 (4 February 2021)

Division:GENERAL DIVISION

File Number(s):      2018/7731

Re:Jennifer Oliver

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO
Dr Peter Wilkins, Member

Date:4 February 2021

Place:Canberra

The Tribunal affirms the reviewable decision of 7 June 2018, denying liability for C5/C6 injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.

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

Deputy President Gary Humphries AO

Catchwords
Workers Compensation – arm condition affecting shoulder, elbow, wrist - whether condition is an injury or disease – whether disease was contributed to, to significant degree, by employment – inconsistent medical evidence and diagnoses

Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14

Cases
Abrahams v Comcare [2006] FCA 1829
Beezley v Repatriation Commission [2015] FCAFC 165
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Montesalvo and Australian Postal Corporation [2011] AATA 319

Secondary Materials
Dr Brian McHugh, ‘What Is Degenerative Disc Disease?’ 2017, Spine Health.com

REASONS FOR DECISION

Deputy President Gary Humphries AO
Dr Peter Wilkins, Member

4 February 2021

INTRODUCTION

1. Ms Jennifer Oliver was born in April 1970 and is 50 years old. Between 2014 and 2018, while working for Services Australia, she developed a painful right arm condition affecting her shoulder, elbow and wrist. She has made two separate claims for workers compensation in relation to this condition, both of which have been rejected by Comcare. The second claim, which was described as a C5/C6 Injury affecting her Right arm shoulder elbow and wrist, is the subject of the present application to the Tribunal for merits review.[1]

   [1] In this decision italics generally connote a direct quotation.

2. The parties have agreed that this application should be heard without a full hearing, i.e. “on the papers”. On 10 September 2020 the Tribunal heard brief oral submissions from the parties, essentially to clarify the issues in the proceedings.

3. As part of the alternative dispute resolution process, Senior Member O’Donovan prepared a neutral evaluation report on Ms Oliver’s claim. Pursuant to s 34E of the Administrative Appeals Tribunal Act 1975 Ms Oliver did not consent to that report being made admissible to the Tribunal for the purposes of the “on the papers” hearing. The Tribunal as presently constituted has therefore not seen the neutral evaluation report.

   BACKGROUND

4. Ms Oliver commenced employment with Services Australia (then called the Department of Human Services) (the Department) on 23 April 2012.

5. On 27 June 2016 she completed a claim for workers compensation, claiming right side Tennis elbow, from mouse work duties. She wrote that she first noticed her condition on 27 May 2015 and first sought medical treatment on 15 March 2016.

6. On 26 August 2016 a delegate for Comcare determined that Comcare was not liable to pay compensation for this condition, which he described as non-specific upper limb pain (right), on the basis that there was no significant contribution from employment. Following reconsideration, a delegate affirmed that determination on 18 October 2016.

7. On 12 December 2016 Ms Oliver filed an application for review by the Tribunal of the reviewable decision of 18 October 2016. However, on 14 March 2018 she withdrew that application.

8. On 4 April 2018 Ms Oliver submitted a new workers compensation claim in which she claimed to have suffered C5/C6 injury which affected her Right arm shoulder elbow and wrist.  On 7 June 2018 Comcare refused liability for this claim too. She sought reconsideration of this decision, but a delegate affirmed it on 7 June 2018.

9. On 23 January 2019 Ms Oliver filed an application for merits review by the Tribunal of the reviewable decision dated 7 June 2018. Eight days later she retired from the public service for medical reasons.

   MEDICAL HISTORY

10. On 20 October 2014 Dr Uthum Dias, an occupational physician, prepared a fitness for duty assessment in relation to Ms Oliver. He noted that she had mild and non specific soft tissue pain in the right arm and right wrist which presently do not fit with an objective clinical diagnosis. On 4 November 2014 a general practitioner, Dr Douglas Gock, recorded that she had developed sore right arm from using mouse, with tenderness of upper arm ante laterally and posteriorly and pain in her right wrist. He also noted a ganglion in the dorsum of her right wrist. He wrote to the department that Ms Oliver had non specific soft tissue pain in her right upper limb shoulder, elbow and wrist which was likely to have been caused by repetitive strain. He repeated this opinion in a leave certificate dated 3 February 2015.

11. On 20 May 2015 Dr Gock recorded that her right arm is progressively worse with RSI, and he diagnosed right lateral epicondylitis. On 15 March 2016 he recorded tennis elbow in his clinical notes. On 19 May 2016 Dr Xiao Luo, apparently a GP, wrote that Ms Oliver was suffering from right elbow pain due to tennis elbow. On 3 June 2016 Dr Luo recorded likely epicondylitis and noted use of mouse aggravate pain [sic]. On 17 June 2016 he recorded significant pain in right arm, medial and ulna[r] nerve pain and noted that she needed physiotherapy weekly. The same day a physiotherapist, Ms Anita Doughty, wrote to Dr Luo stating Ms Oliver had seen her for treatment of work-related right arm pain. She had likely bicipital tendonitis, lateral and medial epicondylitis, possible deQuervain’s...it looks like Complex Regional Pain Syndrome.

12. On 29 June 2016 Ms Oliver had an MRI on her right elbow, shoulder and wrist, which found The ulna shows mild negative variance. TFC is intact without definite tear. The radial carpal and ulnar carpal cartilage are normal. The scan also revealed a large ganglion cyst in her wrist.

13. On 1 July 2016 following a report to him of elbow and wrist pain, Dr Luo considered it possible that Ms Oliver had a complex regional pain syndrome. A week later he recorded off work due to unable to tolerate pain on use of mouse [sic]. He also noted that an MRI scan had revealed subdeltoid tendinopathy and a small joint effusion in the right elbow.

14. On 19 July 2016 Ms Oliver had an injection of cortisone to the subdeltoid region.

15. On 10 August 2016 Dr Sean Low, an occupational physician, examined Ms Oliver. In a subsequent report he diagnosed nonspecific upper limb/arm pain. He arrived at this diagnosis in the absence of any objective evidence of significant physical pathology. He noted that she did not describe any acute precipitating event or trauma in relation to the right limb condition. He considered that there was no material contribution from employment to her current clinical presentation. He also noted there was a background of significant psychosocial events that may be contributing to her current clinical presentation.

16. On 24 January 2017 Ms Oliver had a whole-body bone scan with cervical spine SPECT CT. This revealed Low grade discovertebral arthropathy present in the cervical spine, as well as evidence of rotator cuff disease in the shoulders. It also identified arthritic changes in the thoracic and lumbar spine.

17. Ms Oliver was examined on 22 March 2017 by Dr Roger Pillemer, an orthopaedic surgeon. In his report of the same day he diagnosed a lesion of the upper cord of her brachial plexus involving the C5 and C6 nerve roots, which he noted was an unusual presentation. He said her symptoms did not arise from her cervical spine as her range of movement would seem to be too good for her to have intraspinal nerve root irritation. He suggested that it was unlikely that the nature and conditions of her work would have caused any problems with her brachial plexus, but that her work could certainly then be regarded as an aggravating factor of some probable underlying condition.

18. On 30 March 2017, Dr Paul Ferris, a pain medicine specialist, wrote to Dr Gock that Ms Oliver had:

    …chronic mechanical right upper limb pain associated with a work-related over-use injury and signs of central sensitisation. This is on a background of ongoing litigation with WorkCover, previous abusive marriages, catastrophising thoughts and fear avoidance behaviour.

19. Neurologist Dr Ram Malhotra examined Ms Oliver and wrote in a report dated 11 May 2017 that her primary problem is in the right shoulder and the cervical spine findings are incidental in nature.

20. On 20 July 2017 Dr Ferris wrote a further report. In this he said that, in his opinion, Ms Oliver is suffering from work-related pain. He said her pain is persisting despite using the Dragon system of voice to print dictation and reducing her time on the keyboard. On 13 November 2017 Dr Pillemer wrote that he disagreed with Dr Malhotra, whom he believed had not specifically directed his attention to a possible brachial plexus lesion. He affirmed his earlier opinion of 22 March 2017.

21. Following a nerve conduction study Dr Malhotra wrote a further report, apparently on 8 September 2017, where he noted neurophysiological evidence of mild right sided carpal tunnel syndrome.

22. On 6 December 2017 Dr David McGrath, occupational and musculoskeletal physician and Master of Pain Medicine, conducted a fitness for duty assessment of Ms Oliver. In his report dated 22 December 2017, he noted under the heading Diagnosis that she had multiple conditions, including longstanding lower back pain with radiation into both legs from 2010. He said she now has a widespread ache about the right side of the neck and right shoulder girdle, down into the forearm and elbow and wrist. He wrote that Very little in the way of pathology has been identified.

23. On 18 December 2017 neurosurgeon Dr Justin Pik suggested that Ms Oliver had clinical features suggestive of chronic right C6 radicular pain due to the C5/6 foraminal stenosis. He noted in his report that he had explained the natural history of this condition to the patient as well as the treatment options available.

24. On 22 March 2018 an MRI of the cervical spine and brachial plexus revealed:

    Intervertebral/uncovertebral arthropathy from C3/C4 through C5/C6 with varying degrees of bilateral foraminal narrowing. The narrowing is most prominent at C5/C6 where it is moderate bilaterally.

    The brachial plexus is normal.

25. On 27 March 2018 an ultrasound of the right median and ulnar nerves revealed no abnormality.

26. Dr Pik wrote to Dr Gock on 7 May 2018, discussing a consultation with her following the radiology examination in March that year. He said:

    I have explained to Jennifer that her right upper limb symptoms are fairly atypical for single nerve root compression in the neck as it involves the whole right upper limb in a nondermatomal distribution. However, I am unable to identify any other plausible explanation for her pain except for the C5/6 foraminal stenosis based on the MRI scan.

27. On 23 May 2018 Dr David Fitzgerald, an occupational physician, wrote a report following an examination of Ms Oliver. He concluded:

    She has a fairly protracted history of right upper limb pain which initially has been thought to have been due to various conditions such as carpal tunnel syndrome, lateral epicondylitis or shoulder issues but the current working diagnosis now seems to be right C6 radiculopathy related to degenerative arthropathy demonstrated on MRI of the cervical spine. … This appears to be degenerative in nature and it is unlikely that the nature of her work which is relatively sedentary has had any significant impact upon the development of this condition notwithstanding the fact that she reports increased symptoms carrying out activities at work.

28. On 14 June 2018, Dr McGrath found that Ms Oliver suffered from various conditions, including right carpal tunnel syndrome, Right shoulder dysfunction and pain and neck impairment.

29. In a report dated 8 October 2019, Dr Ravi Cherukuri, neurosurgeon and spinal surgeon, noted degenerative changes at C1/2 and C5/6. He concluded:

    I advised her the cervical disc has certainly improved. She had nerve conduction studies which did not show evidence of ulnar neuropathy and EMG is also normal, suggesting there is no significant nerve impingement at this stage. I advised her there is nothing neurosurgical I could find. Regarding her symptoms of pain in the shoulder, elbow and arm I cannot see any nerve impingement to explain her symptoms.

    A further report dated 19 May 2020 of Dr Cherukuri, following MRI scans in April 2020, referred to cervical spondylosis, slightly prominent at C5/6 and at C2/3.

30. Dr Danny Jones, a locum for Dr Gock, wrote a report dated 21 November 2018 in which he observed that Ms Oliver remains unable to perform her normal office duties with no progress in her capability and little hope of future improvement.

31. On 21 April 2020, a report from South East Radiology found that an x-ray and CT scan of her cervical spine showed Mild degenerative changes at C5/C6 level, but other findings were normal.

32. Dr Romil Jain, specialist pain medicine physician and interventional pain specialist, saw Ms Oliver on 29 June 2020 and wrote a report that day. In the report he discussed a number of areas of pain described by her, including in the lower back, right ankle, right knee and right arm. He noted a report of pain in the lower back related to an injury for which she underwent surgery in 2010. He summarised his assessment of her condition as follows:

    At this stage, I believe Jenn’s main issue is chronic multiple pain secondary to injuries with no obvious inflammation currently. This is with a significant component of central sensitisation.

33. At Ms Oliver’s request, Comcare produced a number of first-aid reports compiled by the Department while she was employed there. These reports, from January 2013 to May 2014, relate, with one exception, to lower back pain. The exception, in May 2014, relates to Heart/chest pains.

    LEGISLATION

34. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides that:

    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.

35. Injury is defined in ss 5A and 5B. Section 5A provides:

    (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.

36. Section 5B, in turn, provides:

    (1)     In this Act:

    disease means:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

37. Finally, ailment is defined in s 4 to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    ISSUES BEFORE THE TRIBUNAL

38. Comcare contends that Ms Oliver’s application before the Tribunal concerns only the C5/C6 Injury which is the subject of her claim for compensation dated 4 April 2018. It contends that the claim for compensation dated 27 June 2016, in relation to Tennis elbow, was withdrawn and is not before the Tribunal presently: Comcare v Muir [2016] FCA 346.

39. However, the delineation may not be as rigid as suggested by Comcare. In Abrahams v Comcare [2006] FCA 1829 the Federal Court held that the Tribunal had power to consider a reformulated claim based on a different diagnosis of the condition of which notice was given. Madgwick J postulated this legal proposition at [18]:

    1. In construing a document purporting to be a notice of injury under the Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.

40. The Tribunal notes that Ms Oliver has pursued, through two workers compensation claims, the same thing: recompense for a painful condition of her right shoulder, arm, elbow and wrist. Because the precise diagnosis of this condition has seemingly eluded the numerous physicians she has consulted, it is unsurprising that she has encountered difficulty in identifying what it is that she wishes Comcare to consider as her work-related injury. We consider that the Tribunal should not apply so restrictive a definition of her claim that the substance of it cannot be weighed. In any case, as will be seen, her claim must fail no matter which way it is formulated.

41. For the reasons set out below, the Tribunal considers that the condition, however formulated, from which Ms Oliver suffers is better described as a disease pursuant to s 5B, than as an injury (other than a disease) pursuant to s 5A. The issue before the Tribunal, therefore, is whether Ms Oliver suffered a disease, pursuant to s 5B, being:

    (i)an ailment or an aggravation of an ailment;

    (ii)that was contributed to, to a significant degree, by her employment by the Commonwealth.

    CONTENTIONS

    Ms Oliver

42. Ms Oliver in a submission related the onset of her condition to her experience at work. She said her position at the Department involved a lot of mouse work for 7.5hrs a day with very little keying. She told Dr Gock in November 2014 that her arm was starting to get sore with the duties of mousing all day. She said she still had pain in her right arm during periods of leave from work. Even when she moved to part-time hours, while using the mouse my right elbow became progressively worse.

43. She returned to full-time work at the end of 2015, but my right elbow and arm became quite painful over this time. She said that on 15 March 2016 my arm was burning and was by this time very painful. For extended periods an ergonomic mouse was not available to her at work. Even when she was provided with an ergonomic mouse, her arm was no better. She took some time off work. She returned on 18 July 2016 but had to leave after just four hours due to the pain. Between 2 August 2016 and 3 August 2017, she worked varying hours per day in an effort to establish a sustainable pattern of work but my arm spasmed (frozen shoulder) at work and was noted by first aid officer and ice was put on the shoulder. In 2016 the pain was excruciating. She referred to medical reports at that time which mentioned oedema. In her submission to the Tribunal she said:

    Oedema is the medical term for fluid retention and is the result of an injury. This then explains that I had injury to my arm, and the only cause of it was work.

44. She contended that the condition was contributed to by employment because it was her right shoulder and arm (the limb which used the mouse) which was affected, not the left.

45. At the interlocutory hearing on 10 September 2020, Ms Oliver referred to headaches which were caused by the mouse work.

    Comcare

46. Comcare concedes that Ms Oliver has suffered a C5/C6 ailment, namely degenerative arthropathy at the C5/C6 vertebral level, causing radiculopathy. It contends, however, that there is no evidence available which supports that her employment contributed at all to her ailment, let alone that there was a significant contribution from employment.

    CONSIDERATION

1. It is important at the outset to establish whether the condition which Ms Oliver asserts is the basis for compensation is a disease or an injury (other than a disease) pursuant to s 5A. The distinction is important because each definition carries a different test of relationship to employment. If, as Ms Oliver asserts, her painful condition of the right arm arose during the time she was working for the Department, then she will be entitled to compensation if the condition is considered an injury (other than a disease). This is because a such a condition is compensable if it arises in the course of employment; that is, it needs only a temporal connection with employment, not a causal one: s 5A(1)(b). If, however, her painful condition is a disease, then it can only be considered compensable if it was contributed to, to a significant degree, by her employment. Her employment must play a significant role in the onset or aggravation of the disease if it is to be compensable: s 5B(1).

2. Whereas previous cases establish that a broken leg is clearly an injury (other than a disease) and mesothelioma contracted through exposure to asbestos is clearly a disease, there are many conditions in between these clinical extremes which fall into a grey area defying easy categorisation. Indeed, a condition may satisfy both definitions.

3. Though dealing with an earlier version of the Act, Wilcox J in Health Insurance Commission v Van Reesch (1996) 45 ALD 302 at 312-313 helpfully and relevantly discussed the distinction between injury (or what his Honour termed injury by accident) and disease:

   There are difficulties about the definitions of "disease" and "injury" in the 1971 Act. The word "injury" is defined, subject to any indication of a contrary intention, as meaning "any physical or mental injury" and including "the aggravation, acceleration or recurrence of any physical or mental injury" but, subject to s 29, as not including "a disease or the aggravation, acceleration or recurrence of a disease".

   I have already quoted the definition of "disease". It is framed in extremely wide terms. The word "disease" is said to include "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development". A broken femur is a physical ailment, disorder or defect. Read literally, the definition would compel the conclusion that a broken femur sustained by an employee falling off a ladder while working should be regarded for the purposes of the Act as a "disease" rather than an "injury". The same position would apply to the injuries suffered by an employee in a motor vehicle accident. On this approach, the concept of "injury" would be superfluous. Anything that met the opening words of the definition of "injury" - that is, "any physical or mental injury" - would also be a disease and thus excluded from the definition by its concluding words. Section 27 of the Act would be redundant. There would be no situation in which an employee sustained "personal injury arising out of or in the course of" employment by the Commonwealth, as distinct from contracting a "disease".

   The courts have not interpreted the definitions in this way. Before the 1971 statute was enacted, it was authoritatively established that, for the purposes of the previous (1930) Act, there was a clear distinction between injury by accident and incapacity through disease. The leading case was The Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588, a case in which the employee had suffered a stroke while travelling to work. At 593 Dixon CJ remarked that:

   "... there is no sufficient ground for excluding from the operation of s. 9 what would otherwise be an injury by accident simply because it is the outcome or the attendant consequence of disease or of physiological degeneration or deterioration."

   Implicit in this statement is the view that an injury may be an "injury by accident" even though entirely internal. Fullagar J made that point explicit. At 596-597 he said:

   "Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered 'personal injury by accident'. This statement, however, requires qualification, because the words 'injury by accident' (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. ... Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus ... It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a 'sudden physiological change'... 

   Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled.

   Cases of the first and third classes are, of course, cases of disease."

4. Specifically in the context of the present Act, the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [47]-[62] outlined what level of physiological change is necessary to establish the existence of a disease:

   47 … 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.

   48 That 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." (emphasis added)

   49 It is against that background that the Act requires the tribunal of fact to give consideration to "the precise evidence, on a fact by fact basis, ... accepted at trial" and then to ask certain questions in order to determine whether an employee is suffering a "disease" or an "injury (other than a disease)".

   50 First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?

   …

   52 If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.

   …

   Not sufficient for an employee merely to feel unwell

   57 The Full Court concluded that the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind" ... To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected.

   58 That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on "an injury".

   59 Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions.

   60 Third, as seen earlier, the word "injury" in "injury (other than a disease)" has a different meaning from the defined term "injury" in s 4(1) – it means "injury" in its primary sense. That necessarily requires consideration of the "precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change".

   61 Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged.

   62 The "nature and incidents of the physiological [or psychiatric] change" will determine whether there was an "injury (other than a disease)". The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.

   (References omitted; bold emphasis added.)

5. Against the principles articulated in these decisions, it appears that Ms Oliver faces several difficulties. The first of these is that it is far from clear on the evidence before the Tribunal that Ms Oliver has experienced a physiological change or disturbance of the normal physiological state. The medical evidence is divergent, even contradictory, on the question of what has caused the pain she complains of. Dr Gock considered that she was afflicted by RSI, and he diagnosed right lateral epicondylitis. Dr Luo also diagnosed epicondylitis, but later suggested a complex regional pain syndrome.

6. Dr Pillemer diagnosed a lesion of the upper cord of her brachial plexus involving the C5 and C6 nerve roots. However, a later MRI of the brachial plexus showed it to be normal. Dr Malhotra suggested carpal tunnel syndrome. Dr Pik suggested she may be suffering from C5/6 foraminal stenosis. In May 2018 Dr Fitzgerald described the current working diagnosis of her condition as being right C6 radiculopathy related to degenerative arthropathy demonstrated on MRI of the cervical spine. Dr Cherukuri referred to cervical spondylosis. Still other conditions were suggested in radiology reports and by a physiotherapist. This divergence of views carries over into disagreement as to where exactly Ms Oliver’s pain arises; Dr Malhotra opined that her primary problem is in the right shoulder and the cervical spine findings are incidental in nature, whereas Dr Pillemer identified the brachial plexus as the source of the problem. Dr Malhotra later suggested carpal tunnel syndrome, a condition of the wrist and hand.

7. The opinions of some of the medical experts appear to be more a description of symptoms than a diagnosis: Dr Dias observed mild and non specific soft tissue pain in the right arm and right wrist. Dr Low found that she experienced nonspecific upper limb/arm pain. Dr Ferris identified chronic mechanical right upper limb pain associated with a work-related over-use injury and signs of central sensitisation, while Dr Jain found chronic multiple pain. Dr McGrath spoke simply of a widespread ache.

8. Significantly, many of these diagnoses are advanced tentatively or speculatively. Other experts indicate that they are unable to come to firm conclusions at all. Dr Dias said that her complaints of pain do not fit with an objective clinical diagnosis. Dr Low noted the absence of any objective evidence of significant physical pathology. Dr McGrath commented that there was Very little in the way of pathology, reflected in the very generic diagnosis of Right shoulder dysfunction and pain. Dr Cherukuri could find nothing neurosurgical in her condition, nor any nerve impingement to explain her symptoms.

9. In these circumstances, we are attracted to the conclusion that Ms Oliver has subjectively experienced symptoms, without an accompanying physiological or psychiatric change, or, put another way, merely an assertion …that … she feels unwell (May at [57], [62]). That is, her pain condition is not an ailment for the purposes of the Act.

10. If, however, the Tribunal assumes, without so finding, that Ms Oliver has experienced physiological change to explain her pain condition, it is reasonable to find that this condition should be described as a disease pursuant to s 5B. The condition appears to be one of gradual onset (Dr Low noted that Ms Oliver did not describe any acute precipitating event or trauma for the condition); it is certainly not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (Gleeson CJ and Kirby J in Kennedy Cleaning at [39]) so as to suggest an injury simpliciter.

11. A disease, to be compensable under the Act, must have been contributed to, to a significant degree, by employment. It is in this area that Ms Oliver’s claim encounters the greatest difficulty.

12. If the condition she suffers from is difficult to diagnose, it is even more difficult a fortiori to determine that it has been caused by employment. Here, it must be said that the weight of the medical evidence is against the conclusion that work has made any contribution to the development of her pain. Most of the medical evidence discusses her condition without identifying a cause. Of those doctors who do speculate on a cause, most appear to doubt its origins in employment. Dr Low, for example, noting the absence of any significant physical pathology or of an acute precipitating event, concluded that her employment at the Department made no material contribution to her current condition. Dr Fitzgerald tended towards a diagnosis of C6 radiculopathy, but concluded that:

    This appears to be degenerative in nature and it is unlikely that the nature of her work which is relatively sedentary has had any significant impact upon the development of this condition notwithstanding the fact that she reports increased symptoms carrying out activities at work.

13. To the ranks of Dr Low and Dr Fitzgerald should be added those specialists who were unable to identify any cause for her pain; it must follow from that state of uncertainty that they cannot attribute the pain to employment.

14. Those opinions which do draw a connection between the condition and employment are, for the most part, inconclusive or unsatisfactory. The GPs Dr Gock and Dr Luo diagnosed epicondylitis in the early stages of the condition, but as this diagnosis was not picked up by any of the specialists it must be regarded as having been superseded. Dr Pillemer diagnosed a lesion of the upper cord of her brachial plexus involving the C5 and C6 nerve roots. He recommended exploration of this possible condition with a neurologist, but a year later an MRI identified that the brachial plexus was normal. Even so, he considered that it was unlikely that the nature and conditions of her work would have caused any problems with her brachial plexus. He does however opine that her work could certainly then be regarded as an aggravating factor of some probable underlying condition.

15. Dr Ferris refers in his report of 30 March 2017 to work-related over-use injury. However, the assertion appears in the opening sentence of his report and reads more as an assumption than a conclusion. Certainly, the mechanics of a work-related over-use injury are not set out or explained in the report. Indeed, in the same opening paragraph he refers to a background of ongoing litigation with WorkCover, previous abusive marriages, catastrophising thoughts and fear avoidance behaviour, which appears to read as an alternative hypothesis for causation of her condition.

16. Dr Jain’s report of 29 June 2020 is similarly inconclusive. His report discusses a range of conditions affecting Ms Oliver, some clearly not work-related, before reaching the conclusion that Jenn’s main issue is chronic multiple pain secondary to injuries with no obvious inflammation currently. Although this report was tendered by Ms Oliver in support of her claim, it is far from clear that Dr Jain is attributing her pain condition to her work and, even if he is, the mechanics of that causation are not outlined by him.

17. In summary, not one of the specialist medical experts draws an explicit connection between Ms Oliver’s employment and the onset of her pain condition. Dr Pillemer, while agreeing that employment has not caused her condition, considers it possible that employment has aggravated her condition. However, even this opinion must be considered doubtful given that it was based on the diagnosis of a lesion of her brachial plexus, a diagnosis which appears to be unsustainable in light of later radiology.

18. In her submissions to the Tribunal, Ms Oliver put emphasis on the emergence of her painful condition in the context of work. She detailed how, while using the mouse at work, my right elbow became progressively worse, and how her right limb became progressively quite painful and then excruciating. She noted that she was often not provided with an ergonomic mouse. Understandably, she considers it reasonable to conclude that the conditions of her employment led to the emergence of this disease.

1. The Tribunal must, however, be a creature of evidence. Senior Member McCabe (as he then was) commented in Montesalvo and Australian Postal Corporation [2011] AATA 319 at [14]:

   The Tribunal is not in the business of definitively resolving scientific or medical disputes. My task is to determine whether I am satisfied the applicant’s shoulder condition – however it is described – arises out of her work. Sometimes, if the state of the science is uncertain, the Tribunal will be incapable of being satisfied that an applicant’s condition is attributable to a work-related incident. On other occasions, the Tribunal will be expected to make a decision without waiting for the final word from the experts. As scientific knowledge evolves, it may become apparent that the Tribunal has wrongly concluded that a connection between a work-related incident and a condition does (or does not) exist. That is regrettable, but we must work with the evidence available to us and do the best we can. The important thing, though, is that there must be credible evidence upon which the Tribunal can form a view that there is a connection: see Provost and Repatriation Commission [2001] AATA 153 at [42].

2. Particularly where a condition is internal to the body, the mechanism of its emergence and development may not be readily apparent even to the person suffering the condition. Nor is the temporal alignment of employment and a painful condition conclusive of causation. Consider the case of an obese man who suffers a heart attack on his first day in employment; his condition is unlikely to be work-related notwithstanding that it occurred at work. In circumstances where a condition emerges which is internal and where its aetiology is uncertain, a decisionmaker must rely heavily on expert medical evidence. In this case, that evidence does not, overall, implicate employment as a causative factor.

3. Ms Oliver asked the Tribunal to consider carefully the report of Dr Pik of 7 May 2018, where he stated that a recent MRI once again demonstrated the C5/6 intervertebral disc degeneration associated with right more than left foraminal stenosis. This opinion appears to align with similar views of Drs Fitzgerald and Cherukuri. All three doctors make reference to the C5/6 condition being degenerative or relating to degeneration. However, degenerative disc disease is … a condition in which natural, age-related wear-and-tear on a disc causes pain, instability, and other symptoms.[2] The term does not, of itself, imply trauma or other external causes. In this context the references to degenerative disc disease do not assist Ms Oliver.

   [2] >

   Finally, Ms Oliver contended that she suffered from oedema, or fluid retention, which is the result of an injury. The only cause of injury to her arm, she said, was work. Putting aside the unproven assumption in that contention, none of the medical evidence refers to oedema. If it was an early diagnosis, it was clearly discarded as time went by.

   CONCLUSION

4. A finding in favour of an applicant before a court or tribunal must be based on more than speculation. No general onus of proof lies on an applicant for review in Tribunal proceedings, of course, but the Federal Court has clarified the nature of the obligation on an applicant to articulate a case upon which a claim might proceed. In Beezley v Repatriation Commission [2015] FCAFC 165 at [68] the Full Court said:

   If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest…

   [Citations omitted.]

5. The Tribunal is not satisfied that Ms Oliver suffers from a condition meeting the requirements of an injury outlined in May. Even if the condition she suffers from, the diagnosis of which we are unable to determine, does meet those requirements, its connection with employment does not, on the balance of probabilities, meet the persuasive threshold described in Beezley.

6. The reviewable decision of 7 June 2018, denying liability for C5/C6 injury, is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO and Dr Peter Wilkins, Member

.......................................................................

Associate

Dated: 4 February 2020

Date of hearing:	24 December 2020 (on the papers)
Date final submissions received:	12 November 2020
Applicant:	In person
Solicitors for Respondent:	Shery Sidrak