Ramsay and Comcare (Compensation)

[2020] AATA 487

Ramsay and Comcare (Compensation) [2020] AATA 487 (11 March 2020)

Division:GENERAL DIVISION

File Number(s):      2017/4331

Re:Neil Ramsay

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member M O'Loughlin

Date:11 March 2020

Place:Adelaide

The decision under review is set aside and in substitution thereof the Tribunal decides that the respondent is liable to pay compensation to the applicant for his neck condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

As to costs

The Tribunal notes that ordinarily the applicant, as the successful party, would be entitled to an order under subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of their costs as agreed or taxed. If no submissions in respect of costs are received from the parties within 14 days of this decision, the Tribunal will make an order in favour of the applicant pursuant to subsection 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

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

Member M O'Loughlin

CATCHWORDS

COMPENSATION – accepted injury – causes of incapacity under claim – nature of ‘injury’ and contributory causes – whether injury due to employment - decision set aside and substituted with a decision that respondent is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

REASONS FOR DECISION

Member M O'Loughlin

11 March 2020

1. The applicant, Mr Ramsay, seeks review of a decision made by Comcare (the respondent) on 8 June 2017 which confirmed a finding that it is not obliged to pay compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

2. There is no real dispute that the applicant suffers from a neck condition.

3. The controversial issue is whether that condition falls within the definition of “injury” contained in the Act at section 5A.

4. Simply put, if it does not fall within that definition, the applicant is not entitled to the compensation provided for in the Act.

   THE EVIDENCE

   Applicant

5. The applicant is a man who was born in 1973 and at the time of the hearing was 45 years old.

6. The applicant’s evidence is that on 18 October 2016 he experienced a bout of dizziness while at his desk at work in the course of his employment with the Department of Agriculture.

7. The applicant had been working for the Department of Agriculture for about 14 years.

8. The applicant gave evidence that he usually worked about 8 hours per day, most of which was using a computer at his desk. He worked in an office at the Adelaide Airport in a storeroom that had been converted.

9. He said that he started using a “varidesk” since about May 2015 when he noticed some minor back pain after a car accident. The applicant described the varidesk as a lift that went on top of his desk and worked on a type of scissor.  It comprised 2 tiers, the upper tier holding the computer screen and the lower one holding the keyboard.

10. The varidesk was intended to allow its user to work either standing or sitting.

11. The varidesk that the applicant was given was not intended for his use. It was his supervisor’s and was presumably given to the applicant in the hope that it would prevent his minor back problems from becoming worse.

12. The applicant said that the varidesk was not professionally installed, but was simply moved from his supervisor’s desk to his own. He did not remember how that was done but thought that his supervisor and he probably moved it themselves.

13. He said that he tried to alternate between standing and sitting throughout the course of the day and that he probably spent about 60% of the time at his desk sitting and 40% standing.

14. The applicant said that his lower back tightness eased fairly quickly although in retrospect he felt drained most days.  At the time he attributed that to getting older and the demands of work.

15. The applicant gave evidence that in the lead up to 18 October 2016 he was working quite steadily and that there was much to do due to an increased focus on policy in anticipation of some legislative change.

16. The applicant did not recall anything unusual about the circumstances of his work on 18 October 2016. He started at the normal time and does not recall whether he took a lunch break.

17. He said that at some stage in the afternoon a colleague came into his office to discuss something with him and as they were talking he felt a sensation on the right side of his head, felt a fainting sensation, and slumped forward.

18. The applicant said he was taken to a doctor in the airport who, having conducted tests to exclude a stroke, told the applicant that he was fine.

19. The applicant said that while he was at the clinic he still felt symptoms, namely pain, and a foggy feeling which wasn’t vertigo, just a cloudy feeling. He said that he took the next day off and returned to work on the 20^th.

20. When he returned to work, he still felt pain and the foggy sensation and he would try to ease his symptoms by moving around and lying down on the floor or in the sick bay.

21. He said that the symptoms were fairly constant but that they would ease if he lay down, although that the improvement did not last more than 20 or 30 minutes. The applicant described sharp pain in the right side of his head and in the back of his neck.  He said that it was “pretty significant” and rated it 5 out of 10.

22. He said that he also took some analgesia but that his normal doctor thought that the pain was related to his neck and would go away.

23. The applicant’s evidence was that the pain did not go away and so on 29 November 2016 he went to see Dr Kennett who had been recommended to him by his father-in-law.

24. He also said that before that happened his supervisor had apparently noticed that he was not comfortable at his desk and so arranged for someone to come and do an assessment.

25. He said that he was assessed at his desk and that measurements were taken when he was both sitting and standing.

26. The applicant said that he tried to stay at work for a few weeks but was in great pain.  He went on to sick leave on 21 November and did not return to work until February 2017.

27. He said that when he did return to work his office had moved and he had a new desk which was assessed and set up for him before he started.

28. He said that Dr Kennett had prescribed him some medication and sent him for physiotherapy and that he ended up seeing Mr Mack for that.

29. The applicant described his symptoms as “horrific” during November, December and January, and said that when he went back to work on 6 February 2017 he was doing three part days per week.

30. He said it was months before he returned to full-time work and even then he required assistance and had to change between sitting and standing. He also said that when he got home he would have to lie down.

31. He said that his return to full-time work involves using the computer mouse in his left hand which is helpful. He also said that he takes regular short breaks from his desk and alternates between sitting and standing.

32. He also said that he is still receiving physiotherapy and exercising. The exercise comprises swimming and a light weight program.

33. When asked about the physical size of his supervisor, Ron, from whom he obtained the varidesk, the applicant said that Ron is about 5 foot 6 (just under 168 cm) tall and that he is about 187 cm (a little under 6 foot 2) tall.

34. The applicant was cross-examined closely as to whether he had described himself as feeling “giddy” at the time of the incident. He said that he does not believe he would have used that word and described himself as having felt “groggy”. He agreed that if he did use the word giddy it would mean the same thing as “dizzy”.

35. He agreed that his symptoms came on suddenly and said that at the time he was not doing anything unusual. In particular, he did not have to turn to speak to the colleague who had come to his office, because his desk faced the doorway.

36. He was asked whether he had suffered a whiplash type injury in the vehicle accident that he had described. The applicant said that he had not suffered whiplash, that it was a very low speed collision, and further that his foot was on the brake so his car did not move.

37. The applicant said that he did not associate the back soreness or tension that he was suffering with the vehicle accident.

38. The applicant agreed that if he had identified symptoms arising from the use of the varidesk he would have reported it. He agreed that use of the original varidesk did not appear to give rise to symptoms.

39. The applicant conceded that he did not make any complaint about it prior to the incident of 18 October 2016.

40. He was asked about an occasion when he attended the Flinders Medical Centre in November 2016. He said that he felt some pain in his back and ribcage so went to hospital where heart problems were excluded. The applicant’s evidence was that he had further testing but no problems were identified and no further chest problems arose.

41. The applicant’s evidence was that there was pain in his upper rib case region which was new and that was why he thought it may have been related to his heart.

42. The applicant was also asked about an incident in a family dinner when he had symptoms of fogginess and neck pain and was unable to continue sitting at the dining table. It was this time that his father-in-law recommended Dr Kennett.

43. The applicant said that the ongoing neck pain and muscle spasm were 10 out of 10 and that he had trouble doing anything.

44. In late November 2016, the applicant received the results of an MRI of his cervical spine which revealed degenerative changes to the C5/6 joint and diffuse shallow annular bulge.

45. The applicant was asked whether his claim arises from the results of the MRI. He said that it was more from a subsequent ergonomic assessment of his desk. He did not agree that all of his issues arise from the bulging degenerative disc alone and said that his claim is for all of the issues arising from his constellation of symptoms.

46. The applicant agreed that by November 2016 there was an ergonomic report available from Mr Andrew McIntosh[1], a physiotherapist, who concluded that the varidesk that the applicant had been using was not suitable for someone of his height. Mr McIntosh made recommendations as to the appropriate equipment.

    [1] Exhibit R1, T Documents, T3, pages 8 - 14.

47. The applicant said that he believes that after the report came in the varidesk was removed and temporary measures were put in place as the applicant was expecting to move into a new role.

48. When he went back to work in February 2017, he was given a new set up which was further adjusted in consultation with Mr McIntosh.

49. The applicant said that he was unable to garden, mow lawns or drive until about January 2017, and that he took painkillers, notably Lyrica, for about 8 to 10 weeks when the pain was at its worst from December 2016.

50. He said that he also used Valium to help him sleep for about 3 weeks.

51. The applicant agreed that by February 2017 the pain was not constant. He described it as still being present, but reduced in severity. He was asked about tiredness or “feeling buggered” at the end of the day which he gave as part of his history to Dr Graham who he saw the request of the respondent.

52. The applicant said that was particularly noticeable in the 6 months following October 2016 and particularly during the time that he was trying to push through and keep working.

53. The applicant also mentioned occasional tingling in his fingers associated with certain positions but did not suggest that this was a particular difficulty.

54. He mentioned some difficulty doing things that required fixed position with his neck bent forward and gave as an example an inability to read the paper for more than 20 minutes.

55. He said that in June 2018 when he saw Jim Mack, he had noted some ringing in his ears which again was not particularly serious and he thinks he didn’t even notice it until his other symptoms had started to improve.

56. It said that at one stage there seemed to be some radiation of pain to the right jaw but that problem was excluded and it was thought to be associated with the neck pain.

    Mr Andrew McIntosh

57. Mr McIntosh was the physiotherapist who provided a report having assessed the applicant’s workstation on 15 November 2016. It said that he did further assessments and provided reports on 20 February 2017 and 3 September 2017, the last of which related to a change of workplace.

58. Mr McIntosh believed that the date on the last report was incorrect and that was probably prepared in about March 2017 after an MRI that was organised for 6 March. He said that the date is sometimes “repopulated”.

59. He was asked about his assessment and what measurements were taken.  He explained that it is not so much a question of taking measurements but of checking the position by eye to ensure that the angles of the elbows and shoulders were correct and that the posture of the head and neck were appropriate.

60. He said that varidesks had been all the rage but that they had to be the correct model for each user’s height.

61. He said that in the applicant’s case, the seated position was adequate but when standing he had to lean forward and reach down to the keyboard.  He also had to look down when he was standing and that this placed a load on the muscles and on the joints.

62. Mr McIntosh said that as a general matter, people who hold a less than ideal position, such as in the applicant’s case, are not aware of the stresses that they are placing on their bodies. He said that the body adjusts but cannot compensate for the mechanical inefficiency.

63. Mr McIntosh said that he had been aware that the applicant had been using the using the original varidesk from May 2015 to mid-November 2016.

64. Mr McIntosh said that he was aware that there had been an incident in October 2016 which he understood had precipitated his involvement.  He said that he did not have a full history as to that incident and that he had only been told that the applicant turned his head to speak to a colleague and blacked out.

65. He said that it was hard to speculate on the effects of using a varidesk with a mechanically inefficient standing position.

    Mr Jim Mack

66. Mr Mack is a physiotherapist who was called by the applicant. 

67. He had prepared a report dated 25 June 2018[2].

    [2] Exhibit A5.

68. He agreed that he had first seen the applicant on 10 April 2018. He said that he understood at that time that the applicant had been involved in a workplace incident.  He said that the applicant complained of pain in the neck, middle back, and head with some low back pain although he did not believe that the low back pain was relevant.

69. He said he performed a physical examination of the applicant and later had access to some imaging.  He said that the main findings on examination were that the applicant had a good range of movement in his neck and that his main restriction was in moving his neck to the left.

70. He said that there were also restrictions in the movement of the shoulder, with the applicant demonstrating poor scapular rotation with weakness and dropping of the shoulder.  He said that the applicant also complained of a band of pain in the mid thoracic area with some rib joint stiffness, and a poor pattern of shoulder elevation.

71. Mr Mack agreed that the restriction of movement that the applicant demonstrated could be described as a mechanical inefficiency and said that, in particular in relation to the applicant’s complaint of a band of pain in the thoracic area, he thought the applicant was tending to thrust his 6^th and 7^th ribs forward and tighten the right side, compressing the right rib cage area.

72. He said that this appeared to be something that the applicant had been doing for some time. Mr Mack said that he believed the applicant had developed a pattern although it was not really helping him.

73. He did not believe that the band of thoracic pain was necessarily related to the pain in the cervical spine.

74. He said that he was aware that the applicant’s workstation had been subjected to an ergonomic assessment in November 2016 and said that the applicant explained to him that he had a “sit stand” desk which was too low and forced him to reach out with his right arm.

75. Mr Mack said that by the time he saw the applicant he understood that another physiotherapist had assessed the new work station and approved it so he didn’t investigate that further.

76. He thought that the problems with which the applicant presented were broadly consistent with the sort of problem that might be caused by a workstation with the limitations that the applicant’s original varidesk had.

77. He did say that the applicant’s symptoms were not typical.

78. Mr Mack was asked about the disc bulges at C5/6 which were visible on the MRI. He said the disc bulges can be asymptomatic but can cause stiffness and restrict movement.

79. He said it is possible to become symptomatic suddenly. He said that he thought the head symptoms were the ones that have come on suddenly rather than the neck problems. Mr Mack agreed that he was reliant on the subjective reporting of a patient as to the onset of symptoms and description of pain.

80. Mr Mack also agreed that impairment of the cervical disc can give rise to neurological symptoms and that could be tingling in the fingers. He did not believe that a complaint of this type of symptom had been made to him.

81. Mr Mack said that he believed that if the applicant continued to use the first sit stand desk, he may have developed shoulder tendon problems.

82. In relation to recovery, Mr Mack gave evidence that when the source of inefficiency is removed some people recover very quickly, but that the applicant’s experience of taking a longer time is not unusual.

83. Under cross-examination Mr Mack was pressed on whether aspects of the applicant’s history such as fuzziness in the head, light sensitivity, and tinnitus are beyond his area of expertise. Mr Mack seemed to agree and said that he was recording the applicant’s history and noting that the applicant associated his symptoms.

84. Mr Mack agreed with the proposition that an asymptomatic disc could have flared up with pressure as a result of the applicant’s positional inefficiency at work, but further agreed that he does not suggest that as a diagnosis because he thought that the imaging of the C5/6 disc joint does not provide convincing evidence of a likely source of the symptoms.

    Dr Kennett

85. Dr Kennett described himself as a general practitioner who concentrates on sports medicine and has a particular interest in the function of the muscles.

86. He said that he saw the applicant in relation to the incident of 18 October 2016 and obtained a history of the applicant having been at his desk and looking up and collapsing.

87. He said that the applicant complained of fuzziness which he thought was coming from his neck and which was not improving. Dr Kennett said that he was not initially particularly concerned with the applicant’s varidesk but was more concerned by his understanding that the applicant’s duties are changed from relatively active to generally computer-based.

88. Dr Kennett ordered an MRI of the neck because he thought the applicant’s problems were probably neck related. He said the film showed mild degeneration in several areas, most notably long-standing degeneration of the C5/6 disc joint.

89. Reference was made to the report that Dr Kennett prepared[3] and Dr Kennett was unable to say whether at the time he prepared the report he was aware of workstation assessment of the applicant’s desk.

    [3] Exhibit R1, T Documents, T19, pages 89 - 92.

90. He said that the workstation assessment does not appear in his notes until 25 May 2017.

91. Dr Kennett said that he had been looking for an explanation for the applicant’s symptoms by considering a reported change of duties, but when he read about the desk he thought that provided a clear explanation.

92. Dr Kennett said that ultimately the applicant reported some “unusual” symptoms including fogginess and Dr Kennett thought that these were within a range of symptoms that could be explained by the sort of neck problem that the applicant had.

1. Dr Kennett said that sometimes people with cervical problems do get unusual symptoms.

2. He arranged for some other investigations including cardiac but none of these suggested any problem.

3. Dr Kennett did not seem convinced that the reported pathology at C5/6 suggested a diagnosis of the symptoms the applicant complained of.

4. In the course of Dr Kennett’s evidence, it became clear that the version of his report contained in his notes did not exactly match the version in Exhibit R1 and so the version in the doctor’s notes was tendered separately and marked Exhibit A6. Dr Kennett believed that the version in Exhibit R1 is the final version.

5. It does not appear that anything significant turns on the difference.

6. Under cross-examination, Dr Kennett agreed that when he first saw the applicant on 29 November 2016 there was a complaint of fuzziness from the base of the neck travelling up his head to his eyes. Dr Kennett indicated that he did not have a clear recollection of taking that history, but that he understood that the applicant had complained of a difference in his vision.

7. Dr Kennett agreed that the applicant had presented with a complex set of symptoms and said that he seemed to be frustrated by the lack of a concrete diagnosis for his problems.

8. Dr Kennett did say that he believed that the symptoms probably arose from problems with the neck. He said that although the symptoms were not classic straightforward facet joint strain symptoms, this did not mean facet joint strain could be excluded.

9. The full range of the applicant’s symptoms was put to Dr Kennett and he maintained his view that the symptoms were neck related. He said there were some things that needed to be excluded, and for example that the ringing in the ears might have suggested an upper respiratory tract infection and so that had to be excluded.

10. He also said that his investigations and treatments were not proving as helpful as he would have hoped and so he continued to look for alternative causes.

11. Dr Kennett was pressed on whether the applicant’s symptoms may not be related to the pathology at C5/6. He said that he believed that the neck was still a source of the applicant’s problems but that some symptoms were unusual and therefore it was prudent to check for other causes. Of the symptoms, he specified the visual symptoms, fuzziness of the brain, and the complaint of chest pain (which complaint was new to Dr Kennett).

12. Dr Kennett agreed with the broad proposition the changes to the C5/6 level were mostly likely to have caused problems in the inter-scapular region rather than the parietal region.

13. Dr Kennett did not move from the position that the applicant’s symptoms were related to his neck and that the postural issues arising from his workplace were likely to have prompted the onset of those symptoms.

    Dr Bastian

14. The applicant called Dr Bastian, a specialist rehabilitation physician who had provided reports of 25 November 2017[4] and 2 February 2018[5].

    [4] Exhibit A7.

    [5] Exhibit A8.

15. Dr Bastian gave evidence that if one stands in a forward leaning posture, the force on the neck is doubled and that the risk of problems is increased.

16. Dr Bastian understood the applicant’s desk had been reviewed in November 2016.

17. He further understood that the posture in which the applicant had been standing was not efficient and caused the applicant to adopt an abnormal posture to compensate.

18. Dr Bastian did not believe that the radiography, and in particular the MRI that showed changes to the C5/6 disc space, was relevant to the applicant’s problems.

19. Dr Bastian did believe that the history of having used a desk with inefficient, forward leaning posture over a period of some 19 months was likely to have given rise to mechanical neck pain that he diagnosed.

20. Dr Bastian did not believe that anything other than the use of the inefficient varidesk provided a likely cause for the applicant’s complaints.

21. Dr Bastian further believed that the applicant’s complaints fitted in nicely with the range of symptoms he would expect of the person using the computer in the mechanically inefficient way described as being imposed on the applicant by the use of the varidesk.

22. Further, Dr Bastian did not believe that there was anything else in the applicant’s history that would explain the symptoms.

23. Under cross-examination, Dr Bastian was pressed as to whether certain complaints made by the applicant might cast doubt on his diagnosis. In particular, the mention of jaw pain and instances of dizziness were put to him but he did not agree that these were suggestive of another mechanism to explain the applicant’s ongoing symptoms.

24. Dr Bastian was also pressed as to differences between his views and those of Dr Graham. He did not concede that his criticisms of aspects of Dr Graham’s report were unwarranted.

    Dr Graham

25. Dr Graham was called by the respondent. He provided a report 29 January 2018[6] and a letter 13 February 2018[7] to the solicitors for the respondent.

    [6] Exhibit R6.

    [7] Exhibit R7.

26. He gave evidence that his role in occupational medicine is largely musculoskeletal.

27. Dr Graham had noted the pathology at C5/6 but did not believe that the applicant’s symptoms were attributable to that pathology or indeed to the cervical spine.

28. He believed he did not believe that a diagnosis could be made and did not assign them to the applicant’s symptoms.

29. He further said that he could not explain the collection of symptoms with which the applicant presented to him.

30. He acknowledged that there is a difference of opinion between himself and Dr Bastian, and gave evidence that he simply did not agree that the cervical spine was the source of the applicant’s symptoms.

31. He was prepared to concede some incidents of neck pain could be attributable to the neck, but that he did not understand these to be a substantial aspect of the applicant’s presentation.

32. He said that it was not uncommon for an array of symptoms to make diagnosis difficult, but he believed that, in the applicant’s case, it was not possible to attribute symptoms to a single cause.

33. Dr Graham was asked about pain maps and said that he was familiar with this diagnostic tool.

34. He was cross-examined about the apparent history from Dr Kennett’s report suggesting that the applicant had participated in rowing and long-distance driving shortly after the relevant incidents.

35. When it was made clear to him that it is no longer suggested that the applicant had undertaken those activities at that time, Dr Graham indicated that history was not critical to his findings and did not affect his view.

36. Dr Graham made it clear that he did not believe that the applicant was fabricating his symptoms.

37. He said that he did not believe that the applicant’s problems were generally related to the neck and that the question of the inappropriate work position and the extra load on his neck was not relevant.

38. He was firm that the fact that there may have been an inefficiency in the applicant’s sitting position does not suggest that this must lead to symptoms. He described that reasoning as “a basic fallacy”.

39. He did agree that a person can develop symptoms from a “non-ergonomic” workplace, but said that the essence is not a workstation setup but the capacity to move to ease the effect of an inefficient working posture.

40. He said that simple diagnosis of mechanical neck pain is too broad to be helpful, though he did not rule out mechanical inefficiency as a source of symptoms. He agreed with the proposition that it might be possible to identify mechanical neck pain even though he finds that diagnosis to be unsatisfying.

41. Dr Graham gave evidence that although the incident occurred at work that was not sufficient to suggest that work was the cause of the applicant’s symptoms.

42. He was firm that he could find no reason to place the applicant’s range of symptoms in the cervical spine.

    Findings

43. There has been no attack on the credit of the applicant and the Tribunal finds that he has been essentially truthful in his evidence.

44. Fairly soon after the precipitating incident in October 2016, a scan demonstrated degeneration in the applicant’s spine at the C5/6 level.

45. Initially this degeneration was thought to be a likely cause of the applicant’s ongoing symptoms. The Tribunal finds that it was not unreasonable to investigate a connection between that pathology and the applicant’s ongoing complaints.

46. Ultimately, the evidence does not support a relationship between that degeneration and the difficulties of which the applicant complains.

47. The Tribunal finds that the C5/6 pathology is neither related to the applicant’s employment nor causative of his symptoms. Although the applicant had ascribed his problems to that, and indeed gave evidence that the provision of the MRI that showed the degeneration was what prompted him to make a claim for compensation, the fact that it does not now appear that there is any link is not fatal to the applicant’s claim.

48. The applicant now presses his claim on the basis of the diagnosis of mechanical neck pain, which was the diagnosis reached by Dr Bastian and supported by Dr Kennett and Mr Mack.

49. The respondent resists the applicant’s claim urging the Tribunal to prefer the evidence of Dr Graham who said the evidence was insufficient to make any diagnosis and it was not therefore possible to make a link between the applicant’s condition (which Dr Graham accepted as truthfully described by the applicant) and his employment as required to found a claim for compensation under the Act.

50. In particular, Dr Graham did not accept the diagnosis of mechanical neck pain as being a diagnosis that is capable of explaining all of the applicant’s symptoms. On that basis, he did not accept the diagnosis of mechanical neck pain as being a reliable diagnosis.

51. The respondent has submitted that Dr Graham’s is the preferable opinion because aspects of the applicant’s complaints are not likely symptoms of mechanical neck pain. In particular, the respondent points to the applicant’s complaints of issues with the right jaw, tightening in the chest, radiation to the right eye or light sensitivity, and tinnitus in the right ear.

52. The respondent observes that the applicant’s own witness, Dr Bastian, did not attribute those complaints to the mechanical neck pain that he diagnosed.

53. In contradistinction, the applicant effectively submits that the diagnosis is not invalidated because it does not explain all of the conditions that he, a layman, has attributed to the neck problem.

54. The Tribunal finds that the applicant suffers mechanical neck pain which was probably brought on by an inappropriate posture that he adopted at work due to an ergonomically inappropriate workstation and, in particular, a varidesk that required him to adopt a standing position that required him to bend his neck forward to an extent that was not mechanically efficient.

55. The Tribunal finds the adoption of this posture on average of about 3 hours a day over a period of about 17 months was sufficient to, and did, cause the applicant “mechanical neck pain”.

56. The Tribunal finds the symptoms related to the mechanical neck pain are mainly right-sided neck pain, right-sided head pain, foggy sensation in the head, right upper neck stiffness, and possible facet joint damage.

57. The Tribunal finds that the applicant also suffers some back pain and stiffness, and the inability to read the newspaper for more than 20 minutes at a time which are also related to the mechanical neck pain.

58. The Tribunal finds that the applicant has made some complaints that are not related to mechanical neck pain from which he suffers, in particular the Tribunal is not satisfied that the complaint of issues with the right jaw, tightening in the chest, radiation to the right eye or light sensitivity, and tinnitus in the right ear are related to the mechanical neck pain.

    Entitlement to Compensation/Definition of “Injury”

59. Subject to certain relevant exceptions, section 14 of the Act obliges the respondent to pay compensation to the applicant if he has suffered an “injury” (as defined) and the injury results in incapacity for work or impairment.

60. The applicant claims that he has suffered an injury as relevantly defined at section 5A(1):  

    (a)  a disease suffered by an employee; or

    (b)  an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment;

61. Or in the alternative, a disease as relevantly defined at section 5B:

    (1)  In this Act:

    "disease" means:

    an ailment suffered by an employee;

    …

    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 … 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.

62. Both parties cited Military Rehabilitation and Compensation Commission v May (May)[8] as a useful guide to interpreting the definition of “injury”.

    [8] [2016] HCA 19.

63. Although the manifestation of the applicant’s condition was sudden, the condition itself did not occur suddenly and was brought on over a period of about 17 months.

64. The applicant observes that in May at paragraph 47, the High Court found that although “suddenness” is often a useful tool in distinguishing physiological change from the deterioration of an underlying disease, it is the question of the physiological change rather than the suddenness of its onset that is important.

65. The Tribunal is satisfied that the applicant suffers from mechanical neck pain.

66. The Tribunal is satisfied that the source of that mechanical neck pain is change in the applicant’s neck, probably including facet joint change.

67. The Tribunal is satisfied that the change in the applicant’s neck was brought on by the inappropriate posture that he had to adopt when standing at his desk in the 17 months leading up to the incident of 18 October 2016.

68. The Tribunal is satisfied that the change, and therefore the mechanical neck pain, arose out of and in the course of the applicant’s employment.

69. The Tribunal is further satisfied that the mechanical neck pain was contributed to a significant degree by the applicant’s employment.

70. The Tribunal finds that the mechanical neck pain therefore satisfies both the definition of “injury” and of “disease” for the purposes of sections 16 and 19 of the Act.

71. The applicant has sought an order under s 67 (8) that his costs of these proceedings be paid by the respondent.  The respondent has not made submissions in relation to that application and  in particular does not suggest that the Tribunal is precluded from making such an order by reason of the effect of s67 (11) or (12).

    Decision

72. The decision under review is set aside and in substitution thereof the Tribunal decides that the respondent is liable to pay compensation to the applicant for his neck condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

73. The Tribunal notes that ordinarily the applicant, as the successful party, would be entitled to an order under section 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of their costs as agreed or taxed. If no submissions in respect of costs are received from the parties within 14 days of this decision, the Tribunal will make an order in favour of the applicant pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for the decision herein of

Member M O’Loughlin

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

Administrative Assistant Legal

Dated: 11 March 2020

Dates of hearing:   22,23,24 & 27 May 2019

Applicant’s representative:                Mr E. Jolly (counsel) on instructions from Tindall Gask Bentley Lawyers

Respondent’s representative:            Mr P. D-Assumpcao (counsel) on instructions from   Sparke Helmore Lawyers