Prior and Comcare (Compensation)
[2017] AATA 844
•9 June 2017
Prior and Comcare (Compensation) [2017] AATA 844 (9 June 2017)
Division:GENERAL DIVISION
File Number: 2015/1679
Re:Gaye Prior
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Regina Perton, Member
Date:9 June 2017
Place:Melbourne
The Tribunal affirms the decision under review.
...................................[sgd].....................................
Regina Perton, Member
COMPENSATION – claim for compensation for work-related condition - unspecified cervical disc disorder - computer and keyboard duties - upper limb pain – whether condition was contributed to by employment – whether condition was aggravated by employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5B, 14(1)Cases
Casarotto v Australian Postal Corporation (1989) 10 AAR 191
Commonwealth v Beattie (1981) 53 FLR 191
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Balacki and Comcare [2013] AATA 768Re Cooper and Comcare [2010] AATA 625
REASONS FOR DECISION
Regina Perton, Member
9 June 2017
BACKGROUND
Ms Gaye Prior works for the Department of Human Services (the Department) as a customer service officer answering telephone queries from Centrelink clients. She lodged a claim for compensation dated 14 August 2014 with the Department for an injury described as Right C6-C7 disc injury causing right shoulder, elbow and arm pain and dysfunction.
On 25 November 2014 Comcare issued a determination denying liability for Unspecified disc disorder, cervical (right) on the basis that Ms Prior’s condition had not been significantly contributed to by her employment. On 24 March 2015 a Comcare review officer affirmed the determination. On 8 April 2015 Ms Prior lodged an application for review with the Tribunal.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) states:
Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5B of the SRC Act states:
Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following 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 defines relevant terms:
…
"aggravation" includes acceleration or recurrence.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
ISSUES
The issues before the Tribunal are:
·What is the appropriate diagnosis of Ms Prior’s condition?
·Was Ms Prior’s condition contributed to, to a significant degree, by her employment with the Department?
What is the Appropriate Diagnosis of Ms Prior’s Condition?
Ms Prior told the Tribunal that she commenced with the Department in June 2007 and initially worked full-time. In a written statement dated 23 September 2015 she said that her duties as a Customer Service Officer at the APS4 level included taking inbound calls, making outbound calls and working on the computer, which involved keyboard and mouse work. She said that on 21 August 2013 she suffered an injury to her right arm and neck while using the mouse in the course of her normal duties. She said that she had noticed pain two weeks previously but had not reported it in the hope that it would subside, but the pain had increased.
Ms Prior stated that by 3 September 2013 the pain in her right arm had increased to the extent that she was required to leave work early and consult her general practitioner Dr Jin Kee, who prescribed rest and pain medication. She took sick leave and prearranged annual leave, and returned to work on 23 September 2013. Ms Prior said that restrictions were put in place, including not using her right arm but this caused pain in her left arm and she ceased computer work until March 2014, when she resumed the computer work and took breaks of five minutes each hour.
Ms Prior stated that for at least 12 months prior to her injury, she had worked 10 hours per day, three days per week by choice as this suited her lifestyle. She said that she had never been treated previously for the injury, and her condition has not improved. However she ceased physiotherapy in December 2014 as she felt that the treatment was not helping because the pain persisted, and the treatment was becoming too expensive. Ms Prior said that sometimes she experiences pain in the left side of her neck and in her left arm, which Dr Kee explained was due to her overcompensating for the lack of use of her right arm. She said that she manages her condition through pain medication. Ms Prior stated that the condition causes difficulty with daily activities such as personal grooming, and restricts the amount of time during which she can drive a motor vehicle.
Under cross-examination Ms Prior acknowledged that in the clinical notes from Dr Kee, there was reference to a previous fall that involved both her upper limbs, yet she had not mentioned this when attending other doctors. She offered no explanation as to why she had not mentioned the fall. Ms Prior maintained that she did not suffer from elbow pain, yet there are numerous references in the clinical notes to epicondylitis of the right elbow and right elbow pain.
Dr Kee signed a medical certificate on 3 September 2013 stating that Ms Prior was suffering from a right shoulder and elbow injury (tennis elbow). In a report dated 20 December 2014 Dr Kee noted that his findings on examination on 3 September 2014 were suggestive of a tenosynovitis of the right elbow with a right rotator cuff tendonitis. He said that on 25 September 2013 Ms Prior was starting to experience more pain in the right shoulder and neck. There was improvement in the right elbow but decreased range of movement in the cervical spine. Dr Kee stated that X-rays showed cervical spondylosis. He said that treatment failed to improve the pain and a computed tomography (CT) scan on 18 December 2013 showed a right-sided disc bulge contacting the right C8 nerve. A magnetic resonance imaging (MRI) scan on 10 February 2014 showed no significant degenerative changes and no evidence of central or foraminal nerve compression. Dr Kee noted that Ms Prior’s prognosis was guarded because of some confusion with her diagnosis due to conflicting results from CT and MRI scans.
Professor Gavin Davis, neurologist, stated in a report dated 10 September 2014 that Ms Prior complained of a diffuse pain syndrome. He said that there were no neurological features and the MRI of the cervical spine was normal. He noted that, in the absence of a diagnosis, and with no pathological lesion identified, there was nothing surgical to offer. He suggested referral to a diagnostic physician such as a rheumatologist.
Dr Caroline Tan, neurosurgeon, stated in a report dated 15 October 2014 that Ms Prior presented with five months of pain in the right side of the neck, the right shoulder and down her right upper limb. Dr Tan was unable to provide a specific diagnosis of Ms Prior’s claimed pain because the investigation process was commenced, but not concluded, as Ms Prior did not return for a follow-up consultation. Dr Tan suggested that the true diagnosis was not a cervical disc injury but possibly a musculoskeletal injury, myofascitis or thoracic outlet syndrome.
Dr Loretta Reiter, consultant rheumatologist, stated in a report dated 21 November 2014 that Ms Prior became aware of pain in her right forearm while at work in August 2013 but could not identify any specific work tasks that exacerbated the pain. Dr Reiter noted that pain in its radiation into the right upper limb is an indicator that Ms Prior was suffering from underlying cervical spine degenerative disc and facet joint disease. Given the reported increase in Ms Prior’s pain while at work, Dr Reiter concluded that this suggested an exacerbation of the underlying condition, and a pre-existing condition that had since ceased. She diagnosed cervical spine degenerative intervertebral disc and facet joint disease, and told the Tribunal that the CT scan and MRI confirmed the existence of facet joint degenerative disease.
Mr Craig Mills, orthopaedic surgeon, stated in a report dated 25 September 2015 that he found a slight reduction in movement in Ms Prior’s neck and shoulder, tenderness around her wrist and a slight wasting of the right shoulder. He diagnosed:
1.Mild intersection syndrome [tenosynovitis] between the outcropping muscles of the thumb and the extensor indicis.
2.Cervical spondylosis with a CT diagnosis of a right paracentral C6-C7 disc bulge contacting the right C8 nerve.
3. Brachialgia or arm pain likely related to the second diagnosis.
4.A probable history of a complex regional pain syndrome with features of vascular reactivity and swelling and widespread pain, which appears substantially resolved at review when seen.
In a supplementary report dated 18 March 2016, Dr Reiter commented on Mr Mills’ diagnosis. She stated that Ms Prior does not have mild intersection syndrome, which she described as a painful condition that affects the thumb side of the forearm, and the mechanism of injury is usually repetitive-resisted extension of the wrist as with rowing, weightlifting or pulling, but not associated with keying on a computer. Dr Reiter agreed with Mr Mills that Ms Prior has cervical spondylosis as the cause of her pain, but no signs or symptoms of C8 nerve irritation. Dr Reiter agreed that Ms Prior more than likely has referred pain in her right arm due to the cervical spondylosis, and that there were no signs and symptoms of complex regional pain syndrome.
Consideration
Professor Davis, neurologist, found no neurological features and suggested a rheumatologist be consulted. Dr Reiter, consultant rheumatologist, diagnosed cervical spine degenerative disc and facet joint disease, and Mr Mills, orthopaedic surgeon, agreed that there was evidence of cervical spondylosis. The Tribunal prefers the diagnosis by Dr Reiter, which was supported by appropriate radiology, rather than the speculative diagnoses by Mr Mills of intersection syndrome and a history of complex regional pain syndrome that had largely resolved, and finds that Ms Prior suffers from cervical spine degenerative disc and facet joint disease.
Was Ms Prior’s condition contributed to, to a significant degree, by her employment with the Department?
In oral evidence at the hearing, Ms Prior said that her work involved 60 per cent using a mouse and 40 per cent using a keyboard. There were about 8 to 10 clicks of the mouse per call, and 50 to 60 inward calls per day, resulting in about 400 to 600 clicks of the mouse per day. She said that she is still working and still suffers pain, even though the symptoms have reduced in severity. She agreed that she had not told doctors about a fall that she had experienced some years earlier.
In a file noted dated 25 March 2013, Ms Prior’s manager recorded that Dr Kee advised that he understood that Ms Prior’s symptoms subsided when she was off work. He did not know the type of work undertaken by Ms Prior.
Dr Tan stated in her report that during the consultation and examination, Ms Prior did not mention that she was claiming compensation for a workplace injury, and consequently there was no discussion about her duties or the possibility of a connection between her employment and her medical condition. Dr Tan stated that she did not obtain any details about the nature of the applicant’s work and any recreational activities that might have caused or aggravated her condition. Dr Tan added that Ms Prior did not spontaneously volunteer any belief that the execution of her work had in any way caused or aggravated her condition.
Mr Mills stated in his report that intersection syndrome relates to frequent use of a computer mouse, while cervical spondylosis has a degenerative relationship. He stated that work-related activities and posture have been a significant contributing factor to the symptomatic development of Ms Prior’s disc protrusion and arm pain, and he concluded that intersection syndrome, cervical spondylosis and disc protrusion and the shoulder/hand syndrome or complex regional pain syndrome have all been contributed to, to a significant degree, by Ms Prior’s employment and the history she gave.
In oral evidence Mr Mills said that he could find no explanation for her symptoms other than her employment, in particular her posture and the nature of her duties that included mouse and keyboard work, and the need for her to remain still for lengthy periods. He agreed that he took a history of neck and head pain and was unaware that Ms Prior had denied this. He was also unaware that there was no record of neck and arm pain recorded by Dr Kee.
Under cross-examination, Mr Mills said that Ms Prior’s arm pain was around the elbow. He was unable to estimate the number of mouse clicks or keystrokes that would lead to intersection syndrome, but said that the syndrome was caused by a number of activities. Mr Mills conceded that attributing the intersection syndrome to Ms Prior’s use of the mouse would depend on the timeline and the development of symptoms, and if Ms Prior had not experienced wrist pain in August 2013 and afterwards, then probably she did not have the syndrome at the time, and it was probably not related to her duties at that time. He estimated that this type of injury would take about 24 months to resolve in the absence of continuing stressors.
Dr Reiter stated in her report that Ms Prior‘s current condition is due to her pre-existing and underlying cervical spine degenerative disc and facet joint disease, with the condition exacerbated by the nature of her work. Dr Reiter said that the exacerbation is a new cause because Ms Prior was previously asymptomatic, and is a continued experience of her symptoms which would have been present in any event. She expressed the view that Ms Prior’s condition was not caused by factors during the scope of her employment with the Department, but was aggravated (or more correctly, exacerbated) by it and this has now ceased. In her supplementary report, Dr Reiter stated that the increase in Ms Prior’s symptoms at work would be while she is at work, and therefore any pain experienced at home is due purely to her underlying condition of cervical spondylosis.
Dr Reiter commented on Mr Mills’ conclusion that frequent use of a computer mouse and posture issues were contributing factors to intersection syndrome, and said that these would only occur while working at the keyboard in a sitting position, and would not cause ongoing pain. Underlying cervical spondylosis would cause constant but fluctuating pain when away from the computer. In oral evidence, Dr Reiter said that the change in Ms Prior before August 2013 when Ms Prior did not experience symptoms, and after August 2013 when symptoms were reported, was due to the underlying constitutional condition of degenerative spinal disease, and does not necessarily have to be due to a particular incident.
Dr Reiter said that Ms Prior experienced pain in her upper limb at home after engaging in a range of physical activities, but that does not mean that the activities were a cause of the pain. Dr Reiter stated that the underlying condition would have occurred regardless of her employment. She emphasised that only real trauma, and not a sedentary position, would cause an aggravation of cervical spondylosis. She clarified her use of the word exacerbation, which she said means a worsening of the experience of the symptoms without any impact on the underlying condition. She reiterated that exacerbation of Ms Prior’s condition ceased long ago, and any symptoms of pain would have occurred anyway.
In the clinical notes of Dr Kee for 9 December 2013 there is a copy of an email from Mr Josef Trethowen, physiotherapist, who stated:
…I have been treating Gay (sic) since the 30th September 2013, for her elbow and forearm symptoms. I have been treating both the local forearm, as well as the neck and shoulder. Treatment has consisted of manual therapy, mobilisations, and dry needling. Gay (sic) has also begun eccentric strengthening for the tennis elbow, which was helping initially.
Initially, we saw improvement to 80% with Gay (sic); however this has plummeted since returning to normal duties at work. Gay’s (sic) need for treatment has increased and her condition appears to be deteriorating. She is showing increased weakness and neural [nerve] symptoms throughout the neck/shoulder/ and the forearm.
I was wondering if you may deem it necessary for Gay (sic) to see a neural specialist, as she does not appear to be responding well to treatment…
Consideration
In the Full Federal Court judgement of Commonwealth v Beattie (1981) ALR 369 Evatt and Sheppard JJ stated at 378:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury …each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
In Re Balacki and Comcare [2013] AATA 768 the Tribunal stated at [74]:
…I find instead that, on the balance of probabilities, Mrs Balacki’s condition is not contributed to any degree by her employment let alone to a significant degree. Certainly, she experiences symptoms at work and, understandably, she associates those symptoms with her duties but, on the evidence I have, I have also found that she experiences symptoms away from her work when she is performing household duties or duties such as driving. Factors in both her workplace and in her life and activities outside the workplace cause her to suffer pain but that pain is not indicative of an aggravation or acceleration of her condition. It is, instead, indicative of the condition from which she suffers. Like the worker to whom Evatt and Sheppard JJ referred in Beattie, and who fractured a leg in a non-work related incident and then put weight on it in the workplace, Mrs Balacki will suffer pain from time to time in her employment with Centrelink. That does not mean, though, that she has aggravated her condition. Her pain is a consequence of her condition and not an aggravation of it.
In Re Cooper and Comcare [2010] AATA 625 the Tribunal stated at [82]:
The mere intensification of pain as a result of activitiy (sic) in a temporal sense, in that the pain is only suffered at work would not however, appear to be sufficient to constitute a compensable injury.
In Casarotto v Australian Postal Corporation (1989) 10 AAR 191, after reviewing earlier judgements, Hill J stated at 197:
...the ordinary English meaning of the words “aggravation and acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of the disease.
32.Hill J states further at 202:
…one can imagine cases of acceleration of a pre-existing progressive disease where the course of the disease itself is such that the consequences of the acceleration cease to matter after a time and contribute not at all to a greater incapacity than would have arisen as a result of the normal progression of the disease. In other circumstances the acceleration results immediately in total incapacity and the mere fact that at some stage total incapacity would have arisen is not a reason for discontinuing compensation.
It would be necessary in each case, be it one of aggravation or acceleration to have regard to the medical evidence in determining whether the compensable period will be finite or whether it should be taken to continue.
Ms Bradey, on behalf of Ms Prior, acknowledged that there had been pre-existing cervical degeneration, but said that there had been a pathological change as a result of Ms Prior’s work: protrusion of the disc where it impacts on the C8 nerve, or advancement of facet joint degeneration, taking the condition from asymptomatic state to a symptomatic state. She submitted that Dr Reiter’s contention that aggravation has ceased is incorrect, and there was no basis for Dr Reiter refusing to accept that Ms Prior was asymptomatic before August 2013, so her evidence should be rejected. Ms Bradey stated that Dr Reiter’s use of the term aggravation to mean a change in the underlying disease process was inconsistent with the SRC Act or case law, and the use of exacerbation to mean the experience of symptoms with no effect on the underlying disease process is essentially the same as aggravation under the SRC Act.
Ms Bradey submitted that the onset of pain in a work context, and with the nature of Ms Prior’s duties and the fact that there was no pain previously, represents an aggravation of her underlying asymptomatic condition (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, Beattie). She said that in circumstances where there have been ongoing symptoms since the initiation of those symptoms and no intervening period to break the chain of causation between the work duties and the pain, then the pain is attributable to the work aggravation.
In respect of Re Balacki, Ms Bradey said that in that case, there were symptoms before the alleged injury, whereas Ms Prior was asymptomatic prior to August 2013, so she suffered an aggravation of the underlying condition. She modified her home duties to cope with the pain, which was ongoing, and aggravation was contributed to by her work and continues to this day. She continues to require treatment. Ms Bradey said that Ms Prior suffered periods of total incapacity and periods of partial incapacity.
Mr Wallace, on behalf of the respondent, submitted that the authorities have established that when a disease that was asymptomatic becomes symptomatic at work this does not establish a compensable injury. He pointed out that in Beattie, pain is not necessarily an aggravation: it is a progression of an underlying condition. Mr Wallace said that Ms Prior’s pain is a response of an underlying condition to tasks or duties performed at work.
The Tribunal considers that Ms Prior did not give an accurate account of her symptoms or medical history. She referred to neck and shoulder pain that she said occurred at work on 21 August 2013, but made no mention of her right elbow pain that Dr Kee diagnosed as tennis elbow and for which he recommended the wearing of a splint. Mr Trethowen contacted Dr Kee in December 2013 about the treatment of Ms Prior’s elbow and forearm pain since September 2013. Ms Prior did not tell all the doctors about a previous fall. She did not return to Dr Tan for a follow-up consultation, and she failed to disclose to Dr Tan that she was claiming compensation for a work-related injury.
The email from Mr Trethowen dated 6 December 2013 indicates that initially there had been some improvement in the neck, shoulder and forearm, but that there had been a deterioration and neural symptoms, which had not been reported by Ms Prior as occurring in the period August to December 2013, which coincided with a return to Ms Prior’s normal full-time duties at her own request. This, together with Dr Kee’s clinical notes, suggests that she was not asymptomatic prior to her consultation with Dr Kee on 3 September 2013.
The Tribunal accepts the submission from Mr Wallace that the authorities show that a temporal connection between pain and duties performed at work is not necessarily the same as a causal connection, and that each case should be determined according to its circumstances. In this case, the symptoms that prevented Ms Prior from undertaking some of her work duties, in particular the use a mouse or keyboard, were apparently related to her upper limb but not her neck. The Tribunal takes into account the conclusion by Professor Davis that there were no neurological features, and the MRI report that showed no nerve compression.
The Tribunal does not accept the conclusion by Mr Mills that in the absence of any other explanation, the symptoms reported by Ms Prior must be work-related. On all the material the Tribunal prefers the evidence by Professor Davis, Dr Tan and Dr Reiter and concludes that the pain experienced by Ms Prior was not an aggravation but was a response of her underlying condition of cervical spondylosis to tasks or duties performed at work. There is no persuasive evidence before the Tribunal to suggest that facet joint degeneration was related to Ms Prior’s work duties.
For these reasons, the Tribunal finds that there was a temporal connection between the pain reported by Ms Prior and her employment with the Department, but not a causal connection.
CONCLUSION
The Tribunal concludes that Ms Prior suffers from an ailment under the SRC Act but the ailment was not contributed to, to a significant degree, by her employment by the Commonwealth. Consequently Ms Prior does not suffer from a disease and is not entitled to compensation under s 14 of the SRC Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member ..............................[sgd]..............................
Dated 9 June 2017
Dates of hearing 18 and 19 August 2016
Counsel for the Applicant Ms K Bradey
Solicitors for the Applicant
Counsel for the Respondent
Slater & Gordon
Mr J Wallace
Solicitors for the Respondent
Sparke Helmore Lawyers
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