Quirk and Comcare (Compensation)

[2024] AATA 3621

Quirk and Comcare (Compensation) [2024] AATA 3621 (11 October 2024)

Division:GENERAL DIVISION

File Number(s):      2021/8667, 2022/0493, 2022/9102, 2023/0196

Re:Jacqueline Quirk

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member.

Date:  11 October 2024  

Place:Melbourne

Pursuant to s 43 of the Administrative Appeals Act 1975 (Cth), the Tribunal ORDERS that:

1.The first reviewable decision is set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of carpal tunnel syndrome to 2 September 2021.

2.The second reviewable decision is affirmed.

3.The third reviewable decision is set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of right elbow epicondylitis to 2 September 2021.

4.The fourth reviewable decision is affirmed.

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

R Cameron, Senior Member

Catchwords

COMPENSATION – commonwealth employee – applicant claimed compensation under four different applications – section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)– definition of ‘injury’ under subsection 5A(1) SRC Act - aggravation of underlying carpal tunnel syndrome - De Quervains tenosynovitis not significantly contributed to by employment - aggravation of underlying lateral epicondylitis – permanent impairment not significantly contributed to by employment - whether each of these illnesses were related to her work with Respondent.

Legislation

Administrative Appeals Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Ellison v Comcare (2022) 175 ALD 62

Secondary Materials

Bruce Connolly and John McKessar, ‘Carpal tunnel syndrome. Can it be a work related condition?’ (2009) 38(9) Australian Family Physician 

Rogier M van Rijn et al, ‘Associations between work-related factors and the carpal tunnel syndrome-a systematic review’ (2009) 35(1), Scandinavian Journal of Work, Environment & Health

L Solomon, D Warwick, & D Nayagam, (eds), Apley's System of Orthopaedics and Fractures (CRC Press, 9th ed, 2010)

REASONS FOR DECISION

R Cameron, Senior Member.

INTRODUCTION

1. There are four applications before the Tribunal of which the applicant seeks review.

   Application No: 2021/8667 - Carpal Tunnel Syndrome (‘CTS’)

2. The first application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent on 5 November 2021 (‘the first reviewable decision’). The first reviewable decision affirmed a previous determination made on 17 September 2021 which determined that the respondent was not liable to pay compensation to the applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of Carpal Tunnel Syndrome (claimed for the applicant’s right arm) or aggravation thereof.

   Application No: 2022/0493 - De Quervain’s Tenosynovitis (‘DQT’)

3. The second application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent on 17 January 2022 (‘the second reviewable decision’). The second reviewable decision affirmed a previous determination made on 8 December 2021 that the respondent has no present liability for the applicant’s injuries described as ‘Aggravation of De Quervain’s tenosynovitis of the right thumb’ pursuant to ss 16 and 19 of the SRC Act.

   Application No: 2022/9102 - lateral epicondylitis

4. The third application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent on 6 October 2022 (‘the third reviewable decision’). The third reviewable decision affirmed a previous determination made on 5 August 2022 that the respondent is not liable for the applicant’s injuries, described as, ‘right sided lateral epicondylitis, sustained on or around 30 March 2020, pursuant to s 19 of the SRC Act’.[1]

   [1] Applicant’s written submissions dated 12 March 2024, 1.

   Application No: 2022/0196 - permanent impairment

5. The fourth application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent 3 January 2023 (‘the fourth reviewable decision’). The fourth reviewable decision affirmed a previous determination made on 29 November 2022 that the respondent is not liable for the applicant’s permanent impairment and non-economic loss claim, in respect of the condition of right-hand wrist impairment Carpal Tunnel Syndrome sustained on or around 30 March 2020, pursuant to ss 24 and 27 of the SRC Act.

   THE EVIDENCE BEFORE THE TRIBUNAL

6. There was both viva voce and documentary evidence before the Tribunal.

7. The documentary evidence consisted of a joint tribunal book (‘JTB’) prepared by the parties to the applications together with the ‘T’ documents in each matter which were received in evidence.

8. The following witnesses gave viva voce evidence:

   (a)The applicant;[2]

   (b)Ms Kristy-Lee Young a Service Support Manager at Services Australia;[3]

   (c)Dr Tracey Molloy a General Practitioner;

   (d)Mr Ash Moaveni a Consultant Orthopaedic Surgeon;

   (e)Dr Neela Janakiramanan a Hand and Wrist Surgeon;

   (f)Dr Avanthi Mandaleson an Orthopaedic Surgeon;

   (g)Dr Simon Journeaux a Consultant Orthopaedic Surgeon;

   (h)Dr Reza Sabetghadam an Occupational Physician;

   (i)Dr Mark Floyd a Consultant Occupational Physician; and

   (j)Dr Gautam Khurana a Neurosurgeon.

   [2] See also, the three witness statements made by the applicant (dated 6 June 2022, 20 June 2023 and 13 November 2023) of the JTB, 239; 246; and 258.

   [3] See also, the two witness statements of Ms Young dated 1 June 2020 and 5 December 2023.

   CONCESSIONS MADE BY THE APPLICANT AT THE OPENING OF THE CASE

9. Counsel for the respondent at the commencement of the hearing made several concessions which is appropriate to record at this juncture. With respect to application No. 2021/8667 which he described as the ‘carpal tunnel claim’ and No. 2022/9102 described by him as the ‘right elbow claim’, whilst denying any liability, conceded that the applicant suffered a time-limited aggravation of such injuries running from 31 March to 2 September 2021.[4]

   [4] Transcript of Proceedings, Jacqueline Quirk and Comcare (Administrative Appeals Tribunal, No. 2021/8667, Senior Member R. Cameron, 11 December 2023) 10, [28] – [46].

   THE ISSUES BEFORE THE TRIBUNAL

10. The Tribunal considers that the issues arising for its determination have been helpfully distilled in the Statement of Facts, Issues and Contentions (‘SFICs’) lodged with it by the applicant on 19 June 2023. They are as follows:

    (a)What are the diagnoses of the applicant’s right upper limb injury/condition sustained on:

    (i)30 March 2020; and

    (ii)9 March 2021?

    (b)Has the applicant suffered an ‘injury’ within the meaning of s 5A of the SRC Act?

    (c)If yes to the above, did the injury result in any incapacity for work and/or impairment pursuant to s 14 of the SRC Act?

    (i)If so, has the applicant reasonably required medical treatment because of the injury pursuant to s 16 of the SRC Act?

    (ii)If so, has the applicant been incapacitated for work as a result of the injury pursuant to s 19 of the SRC Act, since that injury and presently?

    (d)If yes to all or part of the above, has the applicant suffered an injury resulting in permanent impairment pursuant to s 24 of the SRC Act?

    (i)If so, when assessed in accordance with the approved Comcare guide (Edition 2.1) is the impairment at least 10 per cent?

    (ii)If so, what is the percentage impairment relevant to the injury and what are the appropriate non economic loss (‘NEL’) scores referable to the Comcare Guides?

    SOME OBSERVATIONS CONCERNING THE LAY WITNESSES

11. It is appropriate to make some observations concerning the evidence given by the two lay witnesses from the witness box at the hearing of the applications.

12. The applicant was searchingly cross examined. Whilst overall her evidence was given in a forthright and truthful manner the Tribunal considers that on occasion, she exhibited a tendency towards some level of embellishment or exaggeration and on other occasions reconstruction. There were several instances where these features of her evidence occurred. Some of those occasions were where the applicant was confronted with a patient history, recorded by some of the expert medical or other practitioners who conducted assessments of her, which differed from the evidence she gave with respect to her work tasks, achievements, and the onset of her various conditions. There were occasions too where business records in evidence did not corroborate what she had told several expert medical practitioners who examined her.

13. By way of example, several doctors recorded in the history or description of the applicant’s occupation or work duties that she was processing up to 800 claims a working day (to Dr Moaveni) and which usually consisted of a four-to-five-hour period. Similarly, Dr Floyd recorded in his report and noted that the applicant informed him that most days she processed 800 claims over a four-to-five-hour period. Dr Journeaux in his report of 29 November 2022 recorded her stating that, ‘[h]er job involves claims processing and in a typical day she would process approximately 800 claims’.[5] There were in evidence business records described as a ‘KPI Productivity Tracker’, being in the form of a spreadsheet which contained entries recording the number of claims (known as ‘eclipse claims’) processed by the applicant on each day. An examination of the entries contained in the KPI Productivity Tracker reveal a different story to that portrayed by the applicant to these doctors. The applicant’s evidence put a gloss on, or embellished, the number of claims she processed every day. Whilst there were days when she did process in excess of 800 claims a day, this was comparatively infrequent, and did not occur anywhere near every day of the working week as she portrayed it when giving a work history to those doctors.

    [5] JTB, R2, 102.

14. Dr Mandaleson recorded that the applicant informed her that, ‘[t]he work involved processing private hospital claims, processing 800-1000 claims per day’.[6] To Mr Khurana, she said that she processed up to 1000 hospital claims a day.[7] The evidence revealed that at no time did the applicant ever process 1000 hospital claims a day. There were, as noted previously, very infrequent working days where she processed up to 800 claims.

    [6] See also JTB, A2, 16 with reference to the number of claims processed.  

    [7] JTB, R1, 29.

15. Dr Mark Floyd a Consultant Occupational Physician in a report of 29 June 2020, recorded the applicant reporting to him in the section ‘Mechanism of Alleged Injury/Sequence of Events’,

    Ms Quirk reported that she had brief “pings” on and off over time with keying and using her keyboard and mouse. She described these would be brief. She would notice a sharp pain around her wrist like a “stabbing” around the radial border not into the thumb. This was not ongoing and nothing major. She required no time away from work or restriction, was not having any treatment.[8]

    [8] See generally Dr Floyd's report of 29 June 2020 which is document T7 of the T documents in application No 2021/8667.

16. He then recorded that in March 2020, Ms Quirk described that she was undertaking her normal work, known as ‘keying’. These tasks involved the use of a keyboard and a mouse which were performed whilst she sat at an L-shaped desk at a computer with two screens in front of her positioned side-by-side. Usually, she used her right-hand when making such keyboard entries or using the computer mouse.  On that day, she developed sudden severe pain to the radial border of her wrist which referred into her hand and upper elbow, she felt that she lost strength in the right upper limb. Yet to several other doctors and in her evidence, she stated that she had no symptoms prior to 30 March 2020, or that she first noticed the symptoms in March of 2020.[9]  

    [9] For instance, Dr Janakiramanan in her report of 8 August 2023, recorded the applicant as informing her that she first noted issues with the right-hand in March 2020 when she had a sense of instability and pain in the hand. Such being coincident with an increase in her workload. Her report is at page 170 of the JTB. Dr Moaveni recorded the injury occurring on 31 March 2020 when she felt a sudden sharp pain shoot through the radial border of her right wrist, which spread into her hand and up into her right elbow and shoulder. This report is at page 4 of the JTB. There was no reference in that report to any previous history as recorded by Dr Floyd.

17. Dr Floyd was cross-examined on this aspect of his report and the history that he recorded. It was not suggested in such cross-examination that the applicant did not use the words recorded in his report, alternatively that he had recorded the history incorrectly, or was in some way mistaken in recording what the applicant said to him. He presented as an experienced medical practitioner and consultant occupational physician whose overriding duty was to assist the Tribunal. He also presented as a professional and careful expert witness.

18. In careful re-examination by Mr Clark, Dr Floyd explained that where he had recorded words in inverted commas, as he did in his report with respect to the words ‘pings’ and ‘stabbing’ they were quotes and something that the applicant had said. Dr Floyd also explained in detail what his usual practice was when taking a patient history. By way of example, he stated that in such a case as this, he would explain to the patient that they were looking at her right wrist and ask, ‘when did you first start having trouble with your right wrist?’ He further explained that often people will start by referring to when they made their claim prompting him to reply with words to the effect, ‘did you have any trouble prior? This is the question he asked the applicant which prompted him to record what he did in the paragraph concerned. Having had the opportunity to observe Dr Floyd, the Tribunal concludes that he was indeed informed by the applicant when he saw her that her symptoms were ‘brief “pings” on and off over time’ and that ‘she would notice a sharp pain around her wrist like a “stabbing” around the radial border not into the thumb’ as he recorded in his report which was in evidence.

19. In an Ergonomic Evaluation Report prepared on 4 May 2020, Ms Richards, the author of the report in a section entitled ‘Brief history of injury and current status’, recorded that ‘Mrs Quirk reported that the onset of the right wrist pain symptoms was, “on and off for a while”, however, increased approximately a few months ago with the use of a new keyboard’. She was also recorded as reporting symptoms on the right wrist which radiated to the right elbow and right shoulder.[10]

    [10]JTB, R5, 226.

20. The observations recorded in the Ergonomic Evaluation Report of 4 May 2020 by Ms Richards were specifically put to the applicant in cross examination. She was specifically asked if she told the Occupational Therapist who compiled that report that her right wrist pain symptoms were on and off for a while. Her evidence when probed shifted. Initially, her response was that she made it clear that there were no symptoms prior to the injury incurred on 30 March. However, when further probed and the contents of the report put specifically to her, she conceded that she may well have said that.[11]

    [11] Transcript of Proceedings, Jacqueline Quirk and Comcare (Administrative Appeals Tribunal, No. 2021/8667, Senior Member R. Cameron, 11 December 2023) 26, [13] – [45]; 27 [1] – [38].

21. The account recorded by Dr Floyd in his report that she had brief ‘pings’ on and off over time was not put to the applicant in cross examination. However, when in the witness box, this aspect of Dr Floyd’s report was not challenged during his cross examination.

22. The Tribunal also acknowledges that whilst the applicant in cross examination was challenged searchingly about the number of claims she processed per day, by reference to the entries recorded in the KPI Productivity Tracker, the specific references about the number of claims per day that she processed referred to above in the reports of the several doctors was not specifically put to her. Nonetheless, the Tribunal observes that on the evidence before it, those doctors were not given accurate information by the applicant.

23. It seems to the Tribunal more probable than not, that both Dr Floyd and the author of the Ergonomic Evaluation Report, Ms Richards, would not have recorded a largely similar history, as they did from the applicant, unless she had provided them with such history.

24. Further, the applicant in one passage of cross-examination stated that after these symptoms in her right wrist, arm and elbow evolved on 30 March 2020, there was an expectation in the workplace to keep going and take a rest if her arm hurt. Ms Young, who gave evidence and was a most impressive and fair witness, disagreed with this and emphasised that there was no such expectation. The Tribunal accepts Ms Young’s evidence on this topic.

25. Ms Young, who as noted is still employed as an acting Service Support Manager at Services Australia, presented as a thoroughly decent witness. She spoke in glowing terms of the applicant’s capacity as a worker at Services Australia and described the applicant as exceeding her KPI’s at all times and as a ‘great performer’. She emphasised that after 30 March 2020, the applicant was offered other work duties to accommodate her medical restrictions. However, it was ultimately left to the applicant to decide what she would do. Ms Young stated that despite the applicant having been told to slow down, she continued to process claims at a very high pace and indeed at her usual place. Ms Young stated this was not expected of her and anything the applicant asked for would have been accommodated. She only needed to ask. This evidence from Ms Young is accepted by the Tribunal. It cannot accept the applicant’s evidence that if she started to experience symptoms in her right arm that it was an expectation from her employers that she simply had to keep on going regardless. Such evidence has a degree of manifest unreality.[12]

    [12] Transcript of Proceedings, Jacqueline Quirk and Comcare (Administrative Appeals Tribunal, No. 2021/8667, Senior Member R. Cameron, 11 December 2023) 36, [14] – 37 [18]; 37 [13] – [16].

26. Having had the opportunity to observe the applicant in the witness box, who presented as someone very much alive to protecting her interests, one would have thought that if the applicant experienced pain, stress, or inconvenience in the ways she described it as occurring on 30 March 2020 she simply would not have continued to process claims at the very high pace as she did. This is particularly given the impressive evidence of Ms Young, which the Tribunal accepts, that the applicant was offered other work duties to accommodate her medical restrictions and that she only needed to ask. It is behaviour or conduct on the part of the applicant that is inconsistent with her stated condition.

27. There was another dimension to the applicant’s evidence when in the witness box which is of concern to the Tribunal. On 9 March 2021, the applicant had a second intraneural injection to her carpal tunnel region on the deep aspect of the right median nerve.[13] In evidence before the Tribunal was a report from the specialist, Dr Poynter who administered the right carpal tunnel injection under ultrasound control to the applicant on that day. In that report, which was addressed to the applicant’s treating general practitioner Dr Molloy, Dr Poynter briefly explained the process and recorded that ‘the procedure was uneventful’.

    [13] In her first witness statement the applicant stated that the second cortisone injection to her wrist occurred on 10 March 2021. This was not explored in her evidence and probably nothing turns on it however the report from Dr Poynter the specialist who administered the procedure stated that it occurred on 9 March 2021.

1. It should be noted that the applicant had in approximately August or September 2020 previously received a cortisone injection into her right wrist. She explained that she found this treatment eased her pain and enabled her to experience increased movement in a wrist.

2. In the applicant’s witness statement concerning the second cortisone injection she described the experience as completely different when compared to the first occasion. In her words;

   it felt like I had been “struck by lightning”. There was a feeling like electricity. I also felt numbness in my index finger, which spread to my other fingers. The Monday after the second injection, the pain was so bad, that I was unable to use my hand. I informed my employer and stopped work.[14]

   They were, on her version of the injection procedure, extremely serious symptoms that the applicant suffered. At the outset, the Tribunal should observe that this contradiction between what Dr Poynter recorded in his report of 9 March 2021 that the procedure was uneventful and the very strong words used by the applicant in her witness statement to describe the pain and numbness that she experienced, is very difficult to reconcile.

   [14] Statement of Ms Jacqueline Quirk, dated 6 June 2022, [37] – [38].

3. The applicant did consult Dr Molloy the next day on 10 March 2021. The symptoms she described to Dr Molloy were somewhat different from the version recorded in her witness statement. She described to Dr Molloy experiencing pain whilst the injection was being done, numbness and tingling in tips of all her fingers and that her wrist was throbbing. She also explained experiencing electric shocks at the wrist and palm, together with some shooting pain up to the elbow. There was also reduced strength in her hand, and she couldn’t lift cups or wipe her bottom and so on. In fairness to the applicant, she was not probed on this aspect of the evidence in cross examination. However, if she experienced the relatively extreme pain and discomfort as described in her witness statement, or for that matter when in the witness box, one would have expected her to have recounted this fact to her long-standing treating general practitioner with whom she clearly had a very good doctor-patient relationship.

4. One should also observe that it is somewhat surprising, given the serious and immediate reaction that the applicant had to the injection, as she described it, that having raised it with Dr Molloy the very next day, Dr Molloy did not inform Dr Poynter of the fact. Given that the first injection clearly did not cause the applicant any problems, and on her version the second one did cause significant problems, one might have expected it to have been raised with the specialist Dr Poynter.

5. This contradiction between the contents of her witness statement and the report of Dr Poynter, was carefully probed when the applicant was cross examined.[15] The cross examiner suggested to her, as had been recorded by Dr Poynter, that the procedure was uneventful. The applicant then disputed the suggestion, reiterating that the second injection was very different to the first one. Further, she stated that she telephoned the doctor’s rooms the next day in relation to the symptoms she was experiencing. Apparently, she spoke to a nurse and was told that it was going to be painful, so she did expect some level of pain. Then she confirmed in her evidence, at the time of the injection, a nurse assisting during the procedure had to hold her hand when she nearly vomited. Once again, this evidence from the applicant is extremely difficult to reconcile with what has been recorded in Dr Poynter’s report of 9 March 2021 that the procedure was uneventful. It is hardly uneventful if the applicant required assistance and was on the verge of vomiting as the applicant had  said.

   [15] Transcript of Proceedings, Jacqueline Quirk and Comcare (Administrative Appeals Tribunal, No. 2021/8667, Senior Member R. Cameron, 11 December 2023) 24, [37] – 25 [23].

6. One would have expected that if the applicant was so profoundly affected that she was nearly vomiting and had to have her hand held by a nurse, a responsible medical specialist would not have said the procedure was uneventful. Further, once again, having had the opportunity to observe the applicant over some time in the witness box, one finds it exceptionally unlikely that if she had experienced the quite extreme symptoms that she said she did immediately upon the administration of the second cortisone injection, that she would not have told that treating medical specialist precisely the nature and type of pain and other extreme inconvenience such as vomiting or nausea, that she was experiencing at the time. One would also have expected her to have told Dr Molloy that she nearly vomited and had to have her hand held by a nurse. She clearly reposed great trust and confidence in Dr Molloy as a medical professional. Such facts were clearly matters that should have been brought to her attention. It should be repeated that the applicant presented in the witness box as an individual with an acute awareness of acting to protect her own interests.

7. It is also surprising indeed, given the contents of Dr Poynter’s report of 9 March 2021 that the procedure was uneventful, being diametrically opposed to the experience that the applicant recounted when giving her evidence, that neither the applicant nor Dr Molloy took steps to correct the record with him.

   THE FACTS

8. The applicant commenced work in the year 2005 with a Commonwealth Government agency now known as ‘Services Australia’. Initially, she was employed on a part-time basis working approximately 21.75 hours per week. In approximately January 2020, the applicant became a full-time employee. Usually, the applicant commenced working at approximately 8.00 AM until 4.00 PM. She took a 15-minute morning break, 30 minutes for lunch and on most days a 15-minute afternoon break.[16]

   [16] Applicant’s Reply submission dated 7 June 2024, 5, [21].

9. The duties undertaken by the applicant were described by her as process work carrying out various tasks for Medicare. Mostly the applicant undertook data entry tasks, usually processing Medicare ‘Eclipse’ claims for payment, that were performed using a keyboard and a ‘mouse’, or as she put it ‘keying’. Most of her workdays were spent sitting at an L- shaped desk at a computer with two screens in front of her positioned side-by-side. Her evidence was that she generally used her right-hand when making keyboard entries or using the computer mouse. She described using and manipulating her fingers, hands, and wrists for sustained time spans, when so using the keyboard and the mouse.

10. Eclipse claims were claims made by private health providers. Usually, such claims were processed with a 24-hour turnaround time. To commence processing an Eclipse claim the keyboard operator would select an individual claim from a ‘queue’ of pending claims in the computer that required processing on that day. Processing of Eclipse claims required the reviewing officer, having selected the individual claim, to check such claim to verify that it satisfied the applicable rules with respect to the Medicare item number for such a claim. If the keyboard operator was satisfied that the claim complied with the applicable rules for the item number of the service provided by the health care provider, it would be approved.

11. The software used by Medicare did include several prompts for the operator to adopt when processing an approved claim. This enabled detailed information to be considered by the operator as part of the process.

12. In her evidence, the applicant did suggest that approximately more than 50% of the claims that she received were what she described as ‘complex claims’. By way of example, she stated that if there was a claim made by one patient for surgery, performed on several occasions, it took much longer to process because the system required checking and crosschecking to confirm that the correct item number had been allocated to the specific surgery undertaken. This task did frequently require the applicant to navigate between different screens to complete an appropriate review of such claim. She described it as requiring significant use of the mouse and multiple entries by use of keystrokes.

13. She stated that the number of keystrokes required for each entry varied from claim to claim, usually several keystrokes per claim, but occasionally only a few. Once the data entry had been keyed in by this process the result was displayed on a computer screen in front of her. Such tasks were undertaken by the applicant predominantly using her right-hand. Occasionally, but fairly rarely, she would use her left hand.

14. From time to time the applicant as part of her duties did undertake what she described as some ‘telephone work’.

15. Reference was made by the applicant to the fact that she was set various benchmarks or performance targets and indicators. These were frequently referred to as ‘KPI’s’. Her evidence was that she frequently met and often exceeded the KPI’s with respect to the number of claims that she was required to process. She stated that her performance and efficiency were acknowledged by her superiors in the office from time to time. Also concerning the applicant’s performance was the fact that she, due to her detailed knowledge of processing Medicare claims, had conducted classroom training, and in-service training of other staff employed by Medicare. Also, it is apparent that the applicant was a “go to” person that many other staff members would consult when they had doubts about the legitimacy or appropriateness of a claim or some other query. Usually, this related to more complex claims. The applicant estimated that she would on a typical workday assist other colleagues with up to 10 claims in such a way. She stated it was a rare occurrence for her to need to seek assistance from others when it came to processing any Medicare claim, let alone a complex claim.

16. The events that led to this claim being made by the applicant; she says first occurred on 30 March 2020. The applicant was undertaking her customary keyboard duties processing Medicare Eclipse claims. She described suddenly experiencing a searing pain through her wrist and thumb, up to her elbow. It was, she explained, suddenly as if her right wrist, ‘gave way’. Initially, she attempted to continue working but was unable to do so because the pain, she said, was unbearable.

17. Following the sudden onset of pain, the applicant reported what had happened to her. Ms Young, whom the Tribunal found to be a very credible witness, stated that when the matter was brought to her attention, the applicant was offered a variety of other duties to accommodate her situation. Ms Young observed that despite being advised to slow down the applicant largely did not do so. Ms Young also stated that the applicant was not expected to continue in the way she did and that anything she asked for would have been accommodated.

18. At the end of the day on 30 March 2020, the applicant described her arm as still being painful. The pain she experienced extended up to her elbow and into her shoulder. She stated that she had a difficult night, was unable to sleep and described being ‘in agony’.

19. Consequently, on the next day, 31 March 2020, she consulted her general practitioner Dr Molloy. Dr Molloy informed the applicant that she likely had De Quervain’s tenosynovitis and referred her for an ultrasound.

20. An ultrasound was conducted on 3 April 2020 which confirmed the diagnosis of De Quervain’s tenosynovitis.[17]

    [17] See, e.g., the ultrasound image of the applicant's right-hand and wrist taken on 3 April 2020, JTB, 297. Also in evidence was a clinical note of a tele-health consultation between Dr Molloy and the applicant on 15 April 2020, which discusses the ultrasound results, JTB 296; 298. Here, Dr Molloy has recorded that the ultrasound confirmed a diagnosis of De Quervain’s. No other condition is recorded.

21. The applicant, at the request of the respondent’s claims agent, was examined by Dr Floyd on 17 June 2020. As noted earlier, he recorded in his report that the applicant had clinical signs to support a diagnosis of possible Carpal Tunnel Syndrome, but also had some ulnar nerve irritability and tight neural tension. He noted, as was the case, that the applicant was due to have a nerve conduction study and that further consideration of such diagnosis could occur after receipt of those tests[18].

    [18] Ibid, 108.

22. Dr Molloy subsequently referred the applicant to Dr Seneviratne, a neurologist who reviewed the applicant on 8 July 2020. The applicant presented for further evaluation of right arm pain and paraesthesia. A nerve conduction study was conducted on that day. The applicant was observed to have prolonged right median motor and sensory latencies. Right ulnar nerve studies, right radial sensory response and left median nerve studies were normal. Dr Seneviratne prepared a report to Dr Molloy on that day.[19] In that report, in the section entitled ‘Impression’, it was stated that the author suspected some of the symptoms were related to a right-sided Carpal Tunnel Syndrome which was confirmed on electrodiagnostic tests, electrophysiologically it was moderate. There was no evidence of a right ulnar neuropathy. The author also suspected there was superimposed musculoskeletal/soft tissue injuries affecting the hand down the forearm. This report of Dr Seneviratne appears to be the first occasion on which the possibility of the applicant suffering from right-sided Carpal Tunnel Syndrome was raised.

    [19] JTB, 305.

23. A further nerve conduction study was undertaken by Dr Seneviratne of the applicant on 3 September 2020, details of which were contained in a report to Dr Molloy of that day.[20] Amongst other things, in the section of the report entitled ‘Impression’, Dr Seneviratne reported that there had been a significant clinical and electrophysiological improvement of the applicant’s right-sided Carpal Tunnel Syndrome which was described as ‘mild now’.

    [20] See also Dr Seneviratne’s report of 3 September 2020, JTB, 317 and the Electrophysiology Report of the Nerve Conduction Studies undertaken by Dr Seneviratne, JTB, 318.

24. Eventually, the applicant ceased work with Services Australia on or about 9 March 2021 and has not worked since.

    THE MEDICAL EVIDENCE

    Dr Janakiramanan

25. Dr Janakiramanan, a hand and wrist surgeon, gave viva voce evidence at the hearing of the application.[21] She has treated the applicant since approximately May 2021. There were in evidence several reports (or perhaps more accurately letters), from her concerning the applicant dated 20 May 2021,[22]18 November 2021,[23] 23 February 2023,[24] 20 April 2023,[25] and 8 August 2023.[26] The applicant had been referred to her initially, in May of 2021.

    [21] In Dr Janakiramanan's reports she describes herself as a hand and wrist surgeon. However, when giving evidence before the Tribunal on affirmation she gave her occupation as a ‘plastic and reconstructive surgeon’. Probably nothing turns on this distinction.

    [22] JTB, 352.

    [23] Ibid 367.

    [24] Ibid 161.

    [25] Ibid 163.

    [26] Ibid 170-175.

26. Dr Janakiramanan’s first two reports were comparatively short and addressed to the applicant’s treating general practitioner. The third report was prepared in response to a specific letter of instruction sent by the applicant’s lawyers.

27. In her report of 20 May 2021, Dr Janakiramanan recorded a brief patient history. This history included a background of fibromyalgia, which had been diagnosed in 2004 for which the applicant had seen a rheumatologist in the past. Its symptoms included a general degree of pain and fatigue. Also recorded in the patient history taken by her was her right-hand issues in March 2020. The applicant described that her wrist felt like it had given way with a marked increase in pain. This was coincident with an increase in work duties switching from part-time to full-time with an increased workload. Reference was also made in that report to the fact that she was being treated for De Quervain’s tenosynovitis with a splint. The diagnosis by the neurologist of carpal tunnel syndrome was recorded. A first steroid injection which had given her marked improvement in approximately September 2020 was referred to. The applicant explained to Dr Janakiramanan that there was a recurrence of her symptoms in early 2021 with increased pain. She underwent another steroid injection and immediately experienced what was described as ‘electric pain’ immediately at the time of the needle going in and numbness to the index finger.

28. Dr Janakiramanan made a diagnosis of right carpal tunnel syndrome and possible intraneural steroid injection in March 2021. She concluded that it was hard to say what component of the applicant’s then current symptoms were due to persistent untreated carpal tunnel syndrome and what were due to a likely intraneural steroid injection. Either way she concluded that the nerve needed to be released (open carpal tunnel release). Finally, she concluded that given the applicant symptoms were made worse by work, even though carpal tunnel syndrome is common in women of the applicant’s age, she did conclude that work was a significant contributing factor to her symptoms.

29. The report of Dr Janakiramanan of 23 February 2023 noted that the applicant had several conditions including carpal tunnel syndrome, a nerve injury relating to a steroid injection to treat such syndrome, De Quervain’s, an element of tennis elbow and basal joint arthritis. It was considered that if the applicant were to resume work it would be likely to aggravate the carpal tunnel condition. Further, it was recorded that the applicant had developed a degree of complex regional pain syndrome in the limb. Dr Janakiramanan also observed that the second steroid injection that the applicant received had most likely caused a nerve injury which may have led to a degree of permanent impairment.

30. In her report of 20 April 2023, Dr Janakiramanan expressed the opinion that the applicant’s issues (De Quervain’s, tennis elbow and carpal tunnel) were occupationally related. She noted that they had settled down at that time and further observed that if the applicant were to return to her previous work there would be a risk of such issues flaring up again. At that time, she did not believe the applicant required surgery. Further observations were made concerning what she described as the applicant’s ‘residual symptoms’. In particular there was reference to neuropathic pain associated with the right median nerve likely as a result of an intraneural injection. She further observed that an intraneural injection can lead to permanent damage to the nerve which needs to be considered as a likely permanent issue. She recommended consulting a pain physician for long-term management of such issue.

31. The report of 8 August 2023 from Dr Janakiramanan provided a more detailed background concerning the applicant’s patient history. She described first consulting the applicant in May 2021. Details of the account that the applicant provided concerning the  second intraneural injection that she received in February 2021 were recorded by Dr Janakiramanan. The applicant described electric shooting pain at the time of the injection followed by increased pain and numbness in the index finger. Dr Janakiramanan expressed the view that such an account was strongly suggestive of an injection into the median nerve, rather than into the space around it which is the correct and appropriate place to administer a steroid injection for carpal tunnel syndrome. On that occasion, Dr Janakiramanan also recorded that the applicant reported ongoing numbness in the index finger and that her pain was much worse.

32. Dr Janakiramanan further stated in that section of her report that although carpal tunnel syndrome is common in older women, in this circumstance she felt that the applicant’s work was a significant contributor. This assessment was based in part on the nature of the applicant’s work and in part on the basis of her symptoms being worse at and after work. It She observed that as a surgeon she notes that frequent repetitive movements especially with their hand and risk in certain positions (such as using a keyboard and mouse, especially for high-volume work without breaks) can certainly induce carpal tunnel syndrome.

1. In the witness box, amongst other things, Dr Janakiramanan largely confirmed the contents of her several reports. In doing so she explained several tests that were applied to  the applicant with respect to particularly, the condition of carpal tunnel syndrome. Dr Janakiramanan explained why she considered that this condition experienced by the applicant was work-related. She observed that after the applicant stopped working the nerve conduction study then demonstrated that the condition had gotten better. Dr Janakiramanan readily acknowledged that carpal tunnel syndrome is often age-related. She then, in response to a question, said that the questions she asks to differentiate between whether someone has gotten carpal tunnel syndrome because of their age or whether there is a work-related component, is whether their symptoms are worse after work, whether their symptoms are alleviated when they go on holidays and whether such symptoms have improved after they have ceased working. As she put it, those things put together provide an indication of which patients for whom work might be a related issue and for which people it might not be. She did emphasise that it is a very nuanced condition, and every patient is different. However, in the case of the applicant she believed it was work-related.

2. Dr Janakiramanan was searchingly probed about the reference in the Ergonomic Evaluation Report of 4 May 2020 which recorded the applicant informing the author of that report that the onset of right wrist pain symptoms were ‘on and off for a while’.[27] It was expressly put to her that the applicant did not tell her of that. In response to one question, she stated that she did not see it as a very different history to the one that she was given. She later said that she was not informed of this fact because she had not documented it. However, had she been given such a history it would not have changed her assessment of the applicant at that time. She then finally accepted that she was probably not told that the applicant had the symptoms on and off for a while.

   [27] JTB, 30.

3. It was then very specifically put to Dr Janakiramanan that if a history provided by the applicant that the symptoms had been on and off for a while prior to 30 March 2020, that it was more reflective of an age-related, non-work-related onset of carpal tunnel syndrome. Her firm response was that she did not accept that. She stated that work-related carpal tunnel syndrome can either be very sudden or acute, or can progress a little more slowly. Either of those options are possible. She further stated that the time frame over which carpal tunnel syndrome develops is not actually relevant to the condition.

4. Another aspect of Dr Janakiramanan’s evidence from the witness box should be referred to. She stated if a patient has age-related constitutional carpal tunnel syndrome their symptoms might improve but they would not completely resolve. Whereas if the condition is largely occupationally related, the removal of that occupational contribution may actually lead to a complete resolution of the issue. She repeated that it is a nuanced thing. Therefore, she accepted the proposition that if the applicant’s carpal tunnel syndrome was largely occupationally related that when she stopped working it would be resolved; which one would not expect to occur if she had a significant age-related constitutional component to her carpal tunnel syndrome.

   Mr Moaveni

5. Mr Moaveni gave evidence from the witness box. There were also two medical reports from him that were tendered. They were made on 31 March 2022 and 11 December 2023.[28] He is a Consultant Orthopaedic Surgeon. Also, it should be noted that, amongst other things, he is a specialist with sub-specialist interests in Upper Limb Orthopaedic Surgeon at the Alfred Hospital & St Vincent’s Private Hospital. He has specialties with respect to upper limb orthopaedic surgery including shoulders, elbows, wrists and hands.

   [28] See e.g., JTB, A1, 1; Exhibit A24.

6. As noted, the report following an assessment that he conducted of the applicant after a face-to-face interview with the applicant on 31 March 2022 was in evidence. The contents of that report are referred to in their entirety for their full force and effect. Several portions of it will be briefly summarised for the purposes of these reasons.

7. In his report of 31 March 2022, Mr Moaveni recounted what may be described as a patient history under several subject headings including ‘Mechanism of Injury’ and ‘Initial and Subsequent Treatment’. Whilst the patient history recorded by him in the report could be described as comparatively spartan, it does largely accord, or dovetail, with the evidence given by the applicant both in her witness statement and from the witness box.

8. Mr Moaveni then recorded in the report details of a ‘Functional Assessment’, physical examination which included the elbows (elbow motion), wrists (wrist motion) and thumbs (thumb motion). Additionally, the report contained a section entitled ‘Investigations’ which included an ‘Impairment Assessment - Comcare 2.1’, and subheadings regarding elbows (elbow motion), wrists (wrist motion), ‘Right Carpal Tunnel Syndrome’, stability, and apportionment together with a summary.

9. The Tribunal should observe that Mr Moaveni assessed the applicant’s Whole Person Impairment for the right wrist at 0%. He assessed the applicant’s Whole Person Impairment for her right wrist Carpal Tunnel Syndrome as 16%. A summary was then provided by him with respect to her combined Whole Person Impairment for the Muscular Skeletal system as follows:

REGION	WPI %
Right Elbow	3%
Right Wrist	0%
Right Carpal Tunnel Syndrome	16%

1. Mr Moaveni then provided a specific response to a series of questions that were asked of him in a letter of instruction furnished to him by the applicant’s solicitors. It is appropriate to largely reproduce most of these responses for the purposes of these reasons.

2. The diagnoses of the applicant’s injuries and conditions made by Mr Moaveni included a right elbow lateral epicondylitis (tennis elbow), right wrist De Quervain’s tenosynovitis, and right carpal tunnel syndrome.

3. With respect to the prognosis of the applicant’s conditions, Mr Moaveni considered that taking into account the applicant’s diagnoses as well as ongoing symptoms and response to treatment so far, the prognosis in his opinion for further recovery was poor.

4. Concerning treatment to date for the claimed injuries as diagnosed by him he recorded that the applicant had required treatment with her General Practitioner, Occupational Therapist, Physiotherapist and a Neurologist. Additionally, he observed that the applicant had required ultrasound-guided injections for her carpal tunnel syndrome.

5. Mr Moaveni was also asked a question specifically concerning the relationship between the applicant’s injuries and her employment with Services Australia. He was also requested to advise whether he believed that her employment had caused, aggravated or accelerated any underlying condition and whether he believed that her injury was consistent with the stated cause. In response to this line of questioning, he expressed the opinion that the applicant’s employment had caused and aggravated the diagnosis of her injuries, which had been previously referred to, namely right elbow lateral epicondylitis (tennis elbow), right wrist, De Quervain’s tenosynovitis, and right carpal tunnel syndrome. Therefore, he expressed the opinion that the applicant’s injuries were consistent with the stated cause. In support of this opinion, or perhaps as the foundation for it, he stated that the applicant’s work was highly repetitive, involving processing up to 800 claims over a 4-5 hour period, requiring her to use the function and tab keys on her keyboard. He stated that in his clinical experience, this can cause diagnoses including carpal tunnel syndrome, De Quervain’s tenosynovitis and lateral epicondylitis.

6. Therefore, in his opinion, Mr Moaveni considered that the applicant’s employment with Services Australia had significantly contributed to her stated conditions as previously identified. He also recorded that these symptoms in the applicant’s right upper extremity were significantly different to those from which she suffered from as a result of her pre-existing fibromyalgia.

7. Mr Moaveni concluded in his first report that the applicant does not have a capacity for her pre-injury employment. He considered her condition to be permanent and stable.

8. Mr Moaveni’s second report dated 11 December 2023 was prepared by him following a teleconference that he had with the applicant’s lawyers. Prior to that conference and since providing his earlier report in March 2022 he was furnished with additional documentary material as follows:

   (a)The applicant’s witness statements of 6 June 2022, 20 June 2023 and 13 November 2023;

   (b)Reports of Dr Journeaux dated 29 November 2022 and 1 February 2023 together with a file note of a conference stated 1 December 2023;

   (c)Reports of Mr Khurana of 31 August 2022 and 20 September 2023;

   (d)A report of Dr Janakiramanan of 8 August 2023;

   (e)Reports of Dr Seneviratne of 8 July 2020, 3 September 2020 and 3 November 2021;

   (f)Copies of Electrophysiology Reports of 8 July 2020, 3 September 2020, 3 November 2021 and 13 April 2023.

9. Mr Moaveni in the report of 11 December 2023 disagreed with a conclusion expressed by Dr Journeaux that the applicant suffers from both radial nerve entrapment and lateral epicondylitis of the right elbow. He reached this conclusion because in his opinion such a condition is a rare diagnosis and if it was present one would expect to see some changes with the radial nerve on the nerve conduction studies which did not occur with respect to the applicant.

10. He also disagreed with Dr Journeaux’s opinion that relevant scientific literature including the ‘AMA Guides to the Evaluation of Disease and Injury Causation’ support the conclusion that the applicants right lateral epicondylitis had not been caused by her employment.

11. He reiterated his earlier opinion that the applicant’s lateral epicondylitis of the right elbow was significantly contributed to by her employment.

12. Concerning the reports of Mr Khurana, Mr Moaveni disagreed with his conclusion that the applicant’s right carpal tunnel syndrome has probably not been caused by her work. He reiterated his earlier opinion on the topic relying on the following factors:

    (a)The medical records of the applicant’s GP, Dr Molloy in his opinion provide a clear outline of her injuries, which are consistent with carpal tunnel syndrome;

    (b)The neurologist’s nerve conduction studies clearly showed signs of carpal tunnel syndrome;

    (c)When the applicant had her first steroid injection into the carpal tunnel her  symptoms markedly improved, before coming back when the steroid wore off; and

    (d)There is evidence in the scientific literature that highly repetitive work can be a risk factor for developing carpal tunnel syndrome.

13. In cross examination, Mr Moaveni was probed about several aspects of his report. He confirmed that his understanding was that on 31 March 2020 the applicant’s symptoms became quite apparent. As he put it, the highly repetitive nature of the applicant’s work exceeded her threshold, being her physiological threshold and she suffered the relevant injuries. He repeated that it was his understanding that on that one day the applicant had a very high level of repetitive work. Therefore, on that one day processing up to 800 claims over a four-to-five-hour period not only caused but aggravated the three conditions.

14. When probed on another question concerning prior symptoms experienced by the applicant, whilst acknowledging they might have occurred, he repeated that it really was on 31 March 2020 that the applicant’s symptoms became as he called it, ‘quite apparent’. Which then prompted her to see Dr Molloy her general practitioner.

15. Further in cross-examination Mr Moaveni was taken to Dr Molloy’s clinical note of the surgery consultation with the applicant on 31 March 2020. It was put to him that those clinical notes did not mention any pain spreading into the hand. It was also suggested to him that carpal tunnel syndrome normally affects the operation of the hand which was not present on that day when the applicant was examined by Dr Molloy. Mr Moaveni then conceded that typically one would expect carpal tunnel to present with numbness and tingling in the fingers. He also acknowledged that Dr Molloy never made a diagnosis of carpal tunnel syndrome.

16. Mr Moaveni further in his cross-examination agreed that carpal tunnel syndrome is more prevalent in women. He also accepted absolutely, that other conditions such as diabetes can cause carpal tunnel syndrome. Wrist fractures and inflammatory conditions can also be associated with carpal tunnel syndrome.

17. During another part of cross-examination, Mr Moaveni was referred to an article from the Australian Family Physician, ‘Carpal tunnel syndrome. Can it be a work related condition?’[29] This article was referred to by Mr Khurana in his first report. A passage from that article was shown to him. That passage stated that in most cases carpal tunnel syndrome is a constitutional condition. It also stated however that in some patients, work activities generating increased force and pressure on the carpal tunnel over a lengthy period must be regarded as a substantial contributing factor to the condition by the increase in carpal tunnel pressure. It also said that work-related factors may coexist with any of the constitutional risk factors. After this passage was shown to him in cross-examination, Mr Moaveni was asked whether a causative work-related activity had to be both prolonged and more strenuous than computer keying. It was suggested such factors were different to what he had postulated based upon the applicant’s one day of excessive keying. His response was that his opinion was based on the history that the applicant gave, which he stated was very clear in terms of what she had to do on 30 March 2020 and what symptoms were following the incident concerned. Then he referred to what he described as the subsequent investigations and treatment that the applicant undertook.

    [29] Bruce Connolly and John McKessar, ‘Carpal tunnel syndrome. Can it be a work related condition?’ (2009) 38(9) Australian Family Physician, 684.  It should also be noted that its authors, Associate Professor Bruce Connolly is a hand surgeon at the Sydney Hospital and John McKessar is a hand and upper limb consultant also from Sydney.

18. This response was repeated by Mr Moaveni on several occasions during his cross-examination. He reiterated that the view he formed was based on his understanding that the applicant performed 800 claims in the space of four or five hours. She was possibly undertaking 100 or 200 claims per hour which is more than a claim per minute. He also explained that some claims were not straight forward and involved multiple item numbers which required the applicant to apply a number of different keystrokes. That to him was highly repetitive work alone.

19. Mr Moaveni was then probed in cross examination about De Quervain’s tenosynovitis. He repeated his opinion that one day’s activities, at the level described by the applicant, had been the primary cause of such a condition, which was still persisting more than two years later. Reference was then made to an extract from the AMA Guides to the Evaluation of Disease and Injury Causation. The extract addressed ‘De Quervain’s Disease’.[30] In a subsection of that extract entitled, ‘“Occupational Risk Factors for De Quervain’s Disease’, amongst other things, it identifies as risk factors ‘Highly repetitive work alone with other factors: some evidence’ and ‘Keyboard activities: low risk evidence’. The cross examiner then put to Mr Moaveni that  the applicant’s work would not be a primary cause, but could aggravate the underlying condition, perhaps up to 6 or 12 months.[31] His response was that he agreed with the proposition that work could be an aggravator, as opposed to the view he had previously formed which is that it caused and aggravated the injuries. This response was qualified by him stating that he did not agree with the proposition that it would be a short-term aggravation which is what indeed happened to the applicant.

    [30] JTB, 130.

    [31] Transcript of Proceedings, Jacqueline Quirk and Comcare (Administrative Appeals Tribunal, No. 2021/8667, Senior Member R. Cameron, 12 December 2023) 122, [41] – [43].

20. Mr Moaveni repeated that the injury experienced by the applicant was above her threshold for recovery. Therefore, she was not able to recover from the injuries she had sustained.

    Dr Mandaleson

21. Dr Mandaleson gave evidence from the witness box and by way of a medical report. She is also an Orthopaedic Surgeon. A report dated 25 August 2022 produced following an assessment of the applicant conducted by her on 1 July 2022 was in evidence.[32]

    [32] JTB, A2, 16-27.

22. Like most expert medical reports, Dr Mandaleson’s report of 25 August 2022 was broken up into a series of subject headings, not all of which need to be touched on for the purposes of this consideration. She was furnished with an array of material, including several medical reports and medical records for her consideration. There was in the report, a patient history, which was comparatively brief. Reference should be made to the section of her report entitled “education and employment”. In that section Dr Mandaleson has recorded that the applicant was employed in a full-time capacity, working an average of 38 hours per week. Her duties in the role were described as computer-based work. Further, Dr Mandaleson recorded that the applicant, when performing those computer-based work duties, was processing between 800-1000 claims per day. It has already been observed that the evidence does not support a conclusion that the applicant was processing this volume of claims every day. Dr Mandaleson in cross examination readily conceded that she did not record the duration of time spent on these tasks nor confirm whether the applicant was undertaking that level of activity. She also conceded that the duration of time that such work levels were undertaken was an important factor. This response was also qualified by what she described as the relationship between what the applicant was telling her she was doing at the time and the onset of her symptoms.

23. In the section of her report entitled ‘Mechanism of Injury’ it records that the applicant stated on 31 March 2020, she was engaged in her usual work activities of claims processing. It describes her feeling a sudden onset of pain and wrist weakness. The sensation was that the ‘wrist was giving way’. There was no reference to a wrist condition being on and off for a while as recorded by the author of the Ergonomic Evaluation Report of 28 April 2020 or similar observations recorded by Dr Floyd in his report.

24. In the section of her report under the heading ‘Diagnosis’, Dr Mandaleson recorded the applicant as suffering from the following conditions:

    (a)Right wrist De Quervain’s tenosynovitis;

    (b)Right wrist carpal tunnel syndrome or pronator syndrome, with possible intra-neural median this nerve steroid injection at the wrist; and

    (c)Right thumb carpometacarpal mild osteoarthritis.

25. There was a section of the report headed ‘Prognosis’. In that section Dr Mandaleson concluded that the prognosis for the applicant’s right-hand symptoms, if left untreated, was fair. She observed that she was likely to continue to experience pain and dysfunction relating to her median nerve dysfunction. Further, she recorded that her De Quervain’s tenosynovitis appeared stable and mild, and considered it is unlikely to deteriorate further, he expressed the opinion that her prognosis following surgery was unknown.

1. Another ground relied upon by the applicant to contend that the second reviewable decision should be set aside is that the applicant has continued to suffer from the effects of DQT since 30 March 2020, rather than an aggravation of some other underlying condition and whilst the symptoms of her condition had subsided to some extent after ceasing work, the medical evidence supports a finding that the condition persists and is likely to persist should she return to work duties. It is also contended that the condition has persisted well beyond 10 May and 6 December 2021 after which the respondent had previously determined that the effects of her compensable condition had ceased.

2. This contention on the part of the applicant is problematic. It does run contrary to the report of her treating hand surgeon Dr Janakiramanan of 20 May 2021, which provided that provocative testing for DQT was negative.[64] She further stated in that report, ‘no evidence of De Quervain’s today’. The Tribunal did not understand the evidence from any of the other doctors called by the applicant to contradict this finding.

   [64] JTB, 352.

3. Additionally, there was the evidence of Dr Sabetghadam who conducted an apprehension test for De Quervains tenosnovitis on the applicant when he undertook a clinical assessment of her on 26 August 2021. He described her symptoms as being inconsistent with such a condition. The results of that test were consistent with the results of the tests conducted by Dr Janakiramanan on 20 May 2021.

4. Dr Janakiramanan prepared a relatively detailed report, more recently, on 8 August 2023, as previously noted. In addition to providing a moderately extensive background, there were sections entitled ‘Diagnosis of condition and treatment’ and ‘Prognosis of condition’. In the section of the report concerning the diagnosis of the applicant’s condition there is no reference to DQT.

5. These findings of Dr Janakiramanan and Dr Sabetghadam in May and August 2021 (together with Dr Janakiramanan in August 2023) where no De Quervains tenosnovitis  was diagnosed, were not adequately explained away by the medical evidence adduced by the applicant. They are inconsistent with, and do not support, a contention that the applicant has suffered the effects of the claimed condition De Quervains tenosnovitis  since 30 March 2020 and continues to suffer from the effects of that condition as at present and ongoing.

6. The applicant also sought to contend that the expert evidence (from Mr Moaveni and Dr Mandalson) adduced by the applicant strongly suggested that her right wrist and thumb DQT was caused by her employment, and that such expert evidence should be preferred over that adduced by the respondent from Dr Journeaux. The reason for this was that Mr Moaveni and Dr Mandalson are specialists in upper limb and hand wrist conditions by reason of which they are best placed to give an opinion on the cause of the applicant’s condition. Indeed, in cross examination Dr Journeaux was probed on this to some extent. He readily conceded that his higher-level experience was with respect to hips and knees in which he has spent more than 25 years practising. However, it was not suggested that Dr Journeaux was not qualified to express an expert opinion with respect to wrists, arms and elbows with which he was clearly familiar and has obviously operated on in the past. In the same way, Mr Moaveni has given perfectly appropriate evidence to this Tribunal concerning hips, for instance, in other applications. Dr Journeaux gave his evidence in a fair and impartial manner which was clearly intended to assist the Tribunal in its consideration of this application. In this sense the Tribunal did not understand the applicant’s submissions to challenge Dr Journeaux’s evidence. It was more a question of which expert evidence the Tribunal should prefer. In any event, the evidence of Mr Moaveni and Dr Mandalson did not adequately explain how the diagnoses made by Dr Janakiramanan and Dr Sabetghadam should not be accepted by the Tribunal in finding that the applicant did not suffer from DQT at all relevant times as she has claimed. This was a reason for preferring the evidence of Dr Journeaux on this issue.

7. For all these reasons the Tribunal concludes that the second reviewable decision should be affirmed.

   The permanent impairment claim

8. The fourth reviewable decision denied liability of the applicant’s claim for permanent impairment and non-economic loss relating to her right-hand and wrist impairment pursuant to ss s 24 and 27 of the SRC Act.

9. The grounds relied upon by the applicant in submitting that the Tribunal should set aside the fourth reviewable decision are:

   (a)That she has suffered an injury to her right-hand and wrist, due to her right sided CTs and/or the injury to her right median nerve following the intraneural injection on or around 9 March 2021, for which the respondent is liable pursuant to s 14 of the SRC Act;

   (b)Due to this compensable injury, the applicant has suffered permanent impairment to her right-hand and wrist; and

   (c)Her level of Whole Person Impairment is greater than 10%, for which the respondent is liable to pay compensation pursuant to ss 24 and 27 of the SRC Act.[65]

   [65] Applicant's Final Submissions dated 12 March 2024, 33-34.

10. For reasons that have already been articulated, the Tribunal is not satisfied that the applicant’s employment with Services Australia contributed to a significant degree to an injury to her right-hand and wrist due to her right sided carpal tunnel syndrome and/or the injury to her right median nerve following the intraneural injection on or around 9 March 2021. Also, the Tribunal accepts the respondent’s contention, for the reasons articulated above, that any continuing symptoms are not necessarily explicable on the grounds that her work with Services Australia significantly contributed to her claimed condition of carpal tunnel syndrome.

11. The applicant relies on the expert opinions of Mr Moaveni and Dr Janakiramanan that the impairment is permanent. The condition is also said to be recurrent. Insofar as it might be a condition that is recurrent, reference was made to the evidence given in cross examination by Mr Khurana. His evidence by way of response did explain the question from two dimensions as he explained if a patient is predisposed to weight, menopause, age or whatever it might be physiologically, even the cessation of activities such as work, which may have otherwise exacerbated the condition, may not lead to a cessation of such symptoms. This would be because there was an underlying progressing cause, not just the activities of the use of the hand such as in the workplace. The other dimension to the question referred to by Mr Khurana was that if the person returned to using their hands again, or the activity that was previously causing the symptoms, the symptoms might re-occur.

12. Given the history that the Tribunal has found concerning the applicant’s condition prior to 30 March 2020, it prefers the evidence of Mr Khurana with respect to the underlying condition or predisposition to it.

13. The respondent also answers the permanent impairment claim made by the applicant by reference to the reports of Dr Seneviratne of 3 September 2020 and 3 November 2021. The report of 3 September 2020 reported the condition as being mild, which was an improvement from the evidence that was gathered in nerve conduction studies in July 2020. The report of 3 November 2021 following a further nerve conduction study undertaken on that day revealed several things. The right nerve studies and right radial sensory responses and left median sensory responses were all normal. The right lateral antebrachial sensory response was also normal. The opinion was expressed that Dr Seneviratne was not convinced that the applicant had an ongoing right sided carpal tunnel syndrome that was contributing to her symptoms. It was suspected that most of her symptoms were related either to a chronic pain condition affecting the right-hand or musculoskeletal aetiology, which did not reveal any evidence of carpal tunnel syndrome.

14. Additionally, there is the report of Dr Janakiramanan of 8 August 2023. In the section entitled ‘Diagnosis of condition and treatment’ she records, ‘Right carpal tunnel syndrome-quiescent for now’. In the face of this finding made in August 2023, which is consistent with the earlier findings of Drs Seneviratne and Sabetghadam made in the years 2020 and 2021, one has to accept the respondent’s contention that given the condition is in a state of inactivity or dormant, it cannot really be said to fit the descriptor of being ‘permanent’.

15. Further, as already noted, the respondent relies upon the evidence of Dr Sabetghadam, that the tests he conducted were inconsistent with the presentation of carpal tunnel syndrome.

16. The Tribunal considers that the findings of Dr Seneviratne in the two reports and that of Dr Sabetghadam (not to mention the diagnosis of Dr Janakiramanan in her report of 8 August 2023) are, as the respondent contends, obstacles, or perhaps , more accurately as contended on its behalf issues which are insurmountable for a finding being made of permanent impairment to which the applicant’s work significantly contributed to, and  that any continuing symptoms arise from the contribution made by her work at Services Australia to such conditions. These obstacles or insurmountable issues identified by the respondent were not explained away by the expert evidence adduced by the applicant.

17. There is another matter that is relevant to a determination of whether the claim condition is permanent within the meaning of the relevant provisions of the SRC Act on the basis of Dr Janakiramanan’s report of 8 August 2023. In that report and also in her evidence, Dr Janakiramanan expressed the opinion, quite understandably, that the applicant is likely to require carpal tunnel surgery at some future stage. The respondent relies upon the language used in s 24(2) of the SRC Act which provides the purpose of determining whether an impairment is permanent, the decision-maker (in this case the Tribunal) shall have regard to:

    (a)The duration of the impairment;

    (b)The likelihood of improvement in the employee’s condition;

    (c)Whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

    (d)Any other relevant matters.

18. Given the findings of Dr Seneviratne in the two reports, and that of Dr Sabetghadam and the diagnosis of Dr Janakiramanan in her report of 8 August 2023 referred to above, the Tribunal:

    (a)Is unable to reach a conclusion as to the duration of the claimed impairment, if at all; and

    (b)Given the opinion that the applicant is likely to need carpal tunnel surgery at some stage in the future, which is as the respondent contends a likely prospect, the Tribunal concludes there must be a likelihood of the claimed condition, if it is otherwise as contended for by the applicant as improving, which is a relevant consideration under s 24(b) of the SRC Act in determining whether an impairment is permanent.

19. By reason of these matters the Tribunal accepts the respondent’s contentions that a number of the descriptors or criteria prescribed by s 24(2) of the SRC Act have not been satisfied by the applicant. Therefore, it is another reason why the Tribunal is unable to conclude that the applicant has suffered an injury significantly contributed to by her employment which has resulted in a permanent impairment within the meaning of s 24 of the SRC Act.

20. There is one other matter that should be referred to by way of conclusion with respect to the applicant’s claim for a permanent impairment. Once again, this arises from the contents of the report of Dr Janakiramanan of 8 August 2023. Reference was also made in the portion of her report entitled ‘Diagnosis of condition and treatment’ to ‘Ongoing neuropathic pain, Complex Regional Pain Syndrome-due to nerve injury to the right median nerve’. The respondent contends that this diagnosis by Dr Janakiramanan does raise the prospect of the existence of Complex Regional Pain Syndrome affecting or impacting the applicant’s right-hand condition. Therefore, it is contended that if this is the case, it is reasonable to assume that such condition might be having an impact on any alleged level of impairment, or otherwise have some causative effect. Therefore, and in this setting, a problem faced by the applicant is that there has been no claim under s 14 of the SRC Act for such a condition. There is some force in this contention.

21. By reason of the foregoing matters the Tribunal is unable to find or accept that the applicant has established a permanent impairment and non-economic loss claim with respect to her right-hand and wrist.

22. Therefore, the fourth reviewable decision will be affirmed.

    CONCLUSIONS ON THE ISSUES

23. By way of conclusion the Tribunal will address each of the issues before it that  have been identified in paragraph 10 above.

24. With respect to the diagnoses of the applicant’s right upper limb injury/condition sustained on:

    (a)30 March 2020; and

    (b)9 March 2022;

    the Tribunal refers to the consideration of each of the claimed conditions in these reasons above.

25. As to whether the applicant suffered an ‘injury’ within the meaning of s 5A of the SRC Act the Tribunal has concluded she has not suffered an injury within the meaning of that section. By reason of this conclusion the remaining issues identified in paragraph 10 above do not need to be addressed.

    ORDERS

26. The first reviewable decision will be set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of carpal tunnel syndrome to 2 September 2021.

27. The second reviewable decision is affirmed.

28. The third reviewable decision will be set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of right elbow epicondylitis to 2 September 2021

29. The fourth reviewable decision is affirmed.

I certify that the preceding 297 (two hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member.

......................[SGD]...........................

Associate

Dated: 11 October 2024

Date(s) of hearing:	11-15 December 2024
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Applicant:	Mr Shane Dawson
Solicitors for the Respondent:	HBA Legal
Counsel for the Respondent:	Mr Charles Clarke