Raymonde Cunningham and Commonwealth Bank of Australia

[2014] AATA 607

[2014] AATA 607

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5383
Re	Raymonde Cunningham
APPLICANT
And	Commonwealth Bank of Australia
RESPONDENT

DECISION

Tribunal	Mr John Handley, Senior Member
Date	28 August 2014
Place	Melbourne

The Tribunal affirms the reviewable decision dated 12 November 2012.

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

Senior Member

COMPENSATION – applicant suffered bilateral carpal tunnel syndrome, cervical degeneration, tendonitis and secondary psychiatric illness – work duties varied – whether injuries or diseases attributable to her employment – conflicting medical opinions – whether duties undertaken repetitively and rapidly – decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988

Accident Compensation Act 1985 (Vic)

REASONS FOR DECISION

Mr John Handley, Senior Member

1. Mrs Cunningham, the applicant in these proceedings, applied to review a decision of the respondent, her former employer, which denied her compensation for injuries, described in the reviewable decision as bilateral carpal tunnel syndrome and tendonitis, unspecified neck injury, unspecified back injury and psychological condition (T1, p.4).  

2. Additionally, the respondent decided the injuries did not occur during a period when it held a licence to discharge its liability to its employees under the Safety, Rehabilitation and Compensation Act1988 (the SRC Act). That licence was issued to the respondent on 31 March 2008. This part of the reviewable decision was of significance because the applicant claimed compensation under the Victorian WorkCover compensation scheme in 2010, alleging carpal tunnel injuries arising out of her employment with the respondent on 14 November 2005 (T15, p. 28). The applicant recovered compensation as a consequence of a consent decision made on 11 April 2011 (T52, p. 98).

3. The applicant’s employment history with the respondent, the duties undertaken by her, the onset of symptoms and her treatment were the subject of extensive examination during the hearing.  However, it was not in dispute that the applicant had suffered injuries and had the following surgery:

   ·        right carpal tunnel release on 9 May 2011;

   ·        left carpal tunnel release on 12 February 2012; and

   ·        cervical laminectomy between C3 and C6 and partial laminectomy at C7 on 10 September 2012.

   EVIDENCE

   The Applicant

4. The applicant commenced employment with the respondent in 1986 at the age of 18.  She was subsequently employed for 27 years until her employment was terminated on 14 October 2013.  She is presently 46 years of age.

5. The applicant was initially employed on a full-time basis but following the birth of her second child in 1996, she worked part-time at 25 hours per week over 5 days at the respondent’s Altona branch.  She described her duties as back office work … covering tellers and the enquiry counter when needed (Transcript, p. 21). 

6. On 24 January 1994 the applicant witnessed a robbery at her work place.  She observed a person wearing a balaclava and holding a gun.  She completed a compensation claim form.  Records held by the respondent indicate the applicant did not have time off work, had reported her injury as stress anxiety and was provided with counselling. 

7. On 20 February 1995, the applicant was involved in a motor vehicle accident while travelling to work.  She suffered neck and back pain.  In a report of 21 July 1997, Dr Rowais, who consulted with the applicant about 4 weeks after the accident, obtained a history of the applicant having been off work for one week following the accident and had seen a physiotherapist.  On presentation, she complained of pain and stiffness in her neck and lower back.

8. In evidence, the applicant referred to her statement (Exhibit A1) where she recorded that the motor vehicle accident had occurred in 1994 (she acknowledged later that the accident had occurred in 1995) and she had been incapacitated for about 3 weeks.  In evidence, she acknowledged that she suffered back and neck pain but her memory was of the back pain being more severe.  She recalled treatment in the form of massage, physiotherapy and swimming. 

9. In cross-examination, when it was put to the applicant that the records of Dr Rowais indicated that she consulted him 3 weeks after that accident, the applicant said she had initially consulted another doctor who had advised her to take some time off work and undertake swimming as treatment.  She said her emotional state around about that time was fine but when it was put to her that Dr Rowais had recorded she was severely stressed and depressed… and showed a high degree of anxiety, she said I don’t doubt that (Transcript, p. 53 – 54).

10. The applicant did not dispute that records indicated that she was suffering anxiety in 1997, 2 years after the motor vehicle accident and had made a workers’ compensation claim.  She said her work then was constantly on the coin doing things that caused pressure and constantly standing.  We couldn’t sit at the time.  Picking up.  You know, muscular problems.  It’s an ongoing thing (Transcript, p. 55).

11. Although the applicant had given evidence that in 1997 she was working part-time in the back office, her work was not confined to filing and clerical duties.  She said she was engaged in work as a teller, on relief, which involved standing and climbing onto and off a large stool which caused pain in her lower back and neck.  Prior to resuming full-time work in 2006, the applicant said she had been having treatment from physiotherapists, masseurs and her general practitioner (Transcript, p. 55 – 57).

12. The applicant was referred to her clinical file from the Westgate Medical Centre which recorded that she attended from 2001 but did not record that she had presented for treatment of back or neck pain.  The applicant explained that she had been attending Mr Boucher, a chiropractor.  Although his records indicated that he had manipulated her lower back, the applicant said he also treated her neck (Transcript, p. 58 – 59).

13. In 2005 the applicant was experiencing a numb sensation in her right hand on about 2 occasions each week.  She noticed the sensation when she woke in the morning.  She did not experience pain.  She did not have time off work and did not claim compensation.  She consulted her general practitioner, Dr Fotakis, who referred her to Dr Matkovic but she did not attend him.

14. In 2006 the applicant returned to full-time work and transferred to the respondent’s branch in Werribee.  In a statement completed by her in 2013, she described the work at Werribee as being strenuous and repetitive and full time (Exhibit A2 at [2]).

15. In 2007 the applicant was involved in another motor vehicle accident when the vehicle she was driving was struck from behind.  She suffered neck pain, was not incapacitated and did not make any claim for compensation.

16. The applicant was employed as a customer service officer at the Werribee branch and her main duties were:

    (i)attending customers at her desk;

    (ii)emptying the coin machine; and

    (iii)loading the automatic teller machine (the ATM).

    Attending customers

17. When working with customers at her desk, the applicant said she could spend between 40 and 45 minutes processing applications by typing information into her computer.  She said she was required to obtain as much information as possible about a customer, especially when new enquiries were being made, to satisfy a policy of the bank of developing customer relationships.  During the interview, she would make telephone calls where she would hold a telephone receiver between her ear and her shoulder with her neck in a bent position which allowed her to type and speak on the telephone at the same time.  She said an ergonomic consultant was engaged by respondent who recommended provision of a telephone headset for her use but it was not provided to her (Transcript, p. 22).  The applicant said, work on the keyboard was repetitive and she estimated typing an aggregate of about 5 ½ hours each day (Transcript, p. 29).

18. The former manager of the Werribee branch, Mr Arch, gave evidence and said a key performance indicator of the applicant’s work was undertaking at least 3 customer interviews per day which might have a duration of up to 45 minutes.  The work then involved identifying a customer’s needs, for example saving or investing strategies for the purchase of real estate or acquiring personal property; discussion concerning investment options; explaining and demonstrating internet banking and showing brochures.  The majority of time occupied during these interviews was discussion with a customer.

19. Relevant information would be typed during the conversation into a pro forma on her computer.  Alternatively, the applicant had the option of writing the information onto a form which she would enter electronically at the conclusion of the interview.  Mr Arch estimated that the amount of time taken to type data obtained in a 45 minute interview would be about 2 minutes.

20. Mr Arch said that a headset was made available to the applicant but she declined to use it because it was uncomfortable and caused her hair to be untidy.

21. Mr Arch was also aware that the applicant had said in evidence that she might attend 40 to 50 customers per day.  Whilst he agreed with that estimate, he said almost all those customers would be attended to at the front desk, where the applicant would answer questions concerning pin numbers, term deposit rates and other simple queries (Transcript, p. 148; 152-153; 160-161; 163).

22. Sandra Attard worked with the applicant, initially at the Altona branch and from about 2003 at the Werribee branch.  She was also employed as a customer services officer and performed the same duties as the applicant.  She said most of the work was done on a computer but it was not performed at speed or without interruption (Transcript, p. 226).

    Emptying the coin machine

23. The applicant said the Werribee branch had a coin machine which was installed in October 2010 and located in the public area.  It allowed persons – particularly businesses – to empty bags of coins into the top of the machine which would process them, cause them to fall into bags within the machine by denomination and then print a receipt.  The customer would then take the receipt to a teller who would then credit the customer’s account for the value of the coins that had been deposited.  The coin machine is depicted in a bundle of photos (Exhibit R2).

24. The applicant said when one or more bags in the coin machine were filled, an audible noise would be made and if she was free of customers, she would attend to the machine by opening a bottom door (which she said could be accessed only by kneeling on the floor and reaching into the machine), removing a filled bag or bags after releasing a holding clip, replace with an empty bag (and replace the clip), and then carry the bag of coins to a teller about 5 or 6 metres from the machine.  The applicant said a full bag of $2 coins had a value of $2000 and a full bag of $1 coins had a value of $1000.  She said that was the heaviest of the bags.  She estimated the bags to have a weight like a 5 kg bag of potatoes.  On a busy day, she said she would remove about 8 bags per hour and she would be back and forth (from the machine).  Emptying the coin machine was not her responsibility alone.  However, her desk was closest to the coin machine and other staff had selective hearing and I was like, the first point of call really (Transcript, p. 23).

25. The applicant said the holding clips were difficult to release which caused extra pressure on her wrist.  She estimated that she would remove an average of between 3 and 4 filled bags of coins on each occasion she attended the machine which required her to release and reapply the equivalent number of clips.  She said pain in her hands, wrists and arms commenced in 2010, which she associated with releasing the clips and carrying bags of coins.  She also recalled that at about that time, she had no strength in her hands and her elbows were aching (Transcript, p. 27 – 29,). 

26. The applicant said the pain she experienced in her hands wrists and arms in October 2010, coincided with the coin machine being introduced.  Prior to 2010, she said she had numbness in both hands only, more so the right-hand (Transcript, p. 63 – 64).

27. Mr Arch said the coin machine was configured to have 2 bags receiving each of 20 cent, 50 cent and $1 coins.  Only when the second of those 2 bags was filled, would the machine beep to indicate that both bags needed to be removed.  It would be on those occasions where the applicant and other staff would remove and carry 2 bags to the tellers located about 2 or 3 metres from the machine.  On other occasions, one bag of other coin denominations would be carried.  He said there were occasions when the machine was opened that three and on rare occasions, four bags were full and had to be removed.  Only two bags, as a maximum, would be carried from the machine to the teller.  The operator would then return to the machine and remove the third and/or fourth bag and then carry them to the teller.  The bank did have a trolley – an ergo sled – which was provided when the coin machine was installed but it was too big and bulky at the branch and was not used to convey bagged coins from the machine to the tellers.

28. Mr Arch said a bag of $2 coins when filled weighed 6.8 kg.  He said other bags would not be as heavy and in his experience, a bag of 50 cent coins was the lightest.

29. Mr Arch was aware that the applicant had complained that the clips holding the coin bags were difficult to open and caused her discomfort.  He said opening the clips was not a problem but rather the clips would jam or be dislodged.  He said he often repaired or refitted the clips and on occasions a technician was called to undertake repairs.  He said he could not recall ever receiving a complaint from the applicant about releasing the clips to remove bags but did recall her and other staff complaining, on average every two weeks, on the occasions when the clips were dislodged or jammed (Transcript, p. 144‑147; 154 – 156).

30. Ms Attard said that the heaviest coin bags would weigh about 6 kg and they would be carried over a distance of 3 to 4 metres to a teller.  She recalled that the coin machine was introduced in about October 2010 and CSOs did have difficulty on occasions with removing and refitting the clips holding the bags (Transcript, p. 217 and 219).

    Loading the ATM

31. The ATMs were filled three times weekly, before and after trading hours, with $20 and $50 notes.  The applicant was rostered to undertake that work, on three designated days, during one week of a three-week roster with another person.  During staff absences, she undertook more than her rostered hours.

32. The process of loading the machine involves a number of stages commencing with the filling of cartridges, estimated to be about 30cm in length and about 10cm in diameter, with bundles of banknotes.  That process is undertaken in a secured area of the bank by a senior officer.  The cartridges are then shot by a mechanism which causes them to pass through a tube and eventually rest in a cradle within another secured area which allows access to the back of the ATMs (the ATM room).  Staff rostered to fill the ATMs work in that area only.

33. Staff in the ATM room remove up to three cartridges, when received.  The bundles of notes are extracted and are placed into canisters which are then fitted into the ATMs.  Each machine holds four canisters.  On occasions, some note counting is required.  These procedures would occupy up to one hour if the applicant was working alone in the ATM room.  If less than three canisters had been received and the other rostered person was working, the process sometimes occupied forty minutes.

34. The canisters have the width and height of $20 and $50 notes.  The applicant estimated them to be about 15 inches (40cm) in length.  They are filled with 4 bundles each of $20 and $50 notes.  The cartridges and the back of the ATM showing the canisters are depicted in photos (Exhibit R2 and T21, p. 43-44).

35. The applicant said she found access to the cradle which held the note cartridges to be difficult because immediately in front of it, was a large wheelie bin which was used to collect paper for recycling.  One of the photographs depicts her leaning over and reaching across the top of the bin.  Another photograph shows her standing in front of the cradle after the bin had been removed.  It depicts her being able to have access to the cradle in relative comfort and without having to stretch.  The applicant said the recycling bin was placed immediately in front of the cradle after it had been returned from being emptied (Transcript, p. 27). 

36. The applicant estimated she removed an average of three cartridges, on two occasions per week, by reaching across the top of the bin, in the week she was rostered to perform work in the ATM room.  That work involved stretching, gripping and pulling each cartridge (Exhibit A1 at [8]).

37. The canisters within each of three ATMs are stacked vertically and are removed individually to be filled with bank notes.  The top canisters were hip height and were accessed by bending forward.  The bottom canisters were accessed by kneeling on the floor.  Each canister was removed by pulling backwards with both hands after a clip was released.  They were then lifted to a bench, filled with notes taken from the cartridges and then returned to the ATMs.

38. The applicant described removing and replacing the canisters as having to bend her wrists, extend her arms, pull them out (and return them by pushing) and carrying them (Transcript, p. 44 – 45).

39. Mr Arch confirmed that the applicant was rostered to work in the ATM room for one week of every 3 weeks and then on Monday, Wednesday and Friday of that week.  He said 2 staff would be rostered in each week.  One staff member would be required to remove the cylinders and empty them and the other staff member would be required to load the canisters into the ATM.  He estimated that on about one of every three occasions that the applicant was rostered, she was working alone. 

40. Mr Arch estimated the weight of a canister when loaded with bank notes to be about 4kg.  He said an empty canister would weigh about 1kg.  He was aware that a large wheelie bin containing paper for recycling was positioned in front of the cylinder cradle.  He said others did not have difficulty moving it, probably because they were taller than the applicant.  He understood her difficulty to have been reaching across the top of it to obtain access to the cylinders.  He said the applicant never asked him to remove the bin but she had told him that it was difficult for her to move it (Transcript, p. 142 – 144; 159).

41. Ms Attard said there were occasions where up to 3 cylinders containing banknotes would arrive simultaneously which caused difficulty extracting them from the cradle.  She said that practice changed for a period of time where only one cylinder was shot at a time but depended on who was filling them at the other end.  Eventually the practice reverted to shooting up to 3 cylinders at any one time.  Additionally, access to the cradle holding the cylinders was difficult because a large wheelie bin containing recycled paper was placed in front of it which caused her and other ATM employees to reach across the top of it (Transcript, p. 222).

42. Ms Attard said there were occasions when she would remove the bin, take it outside to empty and return it.  She said the bin was located in front of the cylinder shoot because the ATM room was, at one stage, a complete mess but she could not think of any reason why the bin could not have been moved to the right side of the cradle to allow unimpeded access (Transcript, p. 223 – 224).

    Treatment, incapacity and modified work

1. The applicant consulted Dr Fotakis and Dr Al-Jabbari at the Westgate Medical Centre where she has been attending since 2001.  She was referred to Mr Parker, a surgeon, who initially referred the applicant for nerve conduction studies and who ultimately performed bilateral carpal tunnel surgery in May 2011 and February 2012.  The applicant was later referred to Mr Han, a neurosurgeon for cervical laminectomy at multiple levels in September 2012.

2. The applicant said she was encouraged by one of her general practitioners and by Mr Parker to lodge a claim for compensation.  She said she spoke with a person in the human resources office of the bank and was told to complete a claim form.  She said she notified the officer that she could not identify the date of injury but when she described it, she was told that it was a progressive injury.  On that basis and in the belief that carpal tunnel symptoms commenced in 2005, when she had a numb sensation in her right hand, she recorded the injury occurred on 14 November 2005 (T15, p. 28).  The applicant consulted with Dr Fotakis on that date (T122, p. 266).  The applicant reaffirmed that she did not have pain in her right hand until 2010 (Transcript, p. 32-33).

3. The applicant said she suffered severe neck pain and stiffness in 2011.  She also noted that she was having pain extending into both arms.

4. The applicant recalled that she had a bit of neck pain after a motor car accident in 1994 but found that work as a concierge, which she commenced after she returned from the carpal tunnel surgery and which required her to stand for most of each day, was placing pressure on her neck.  She had noted the progressive increase in neck pain and stiffness before the carpal tunnel surgery which she had associated with holding her neck in a bent position to hold a telephone receiver.  She also associated neck pain with working in a seated position facing her computer terminal and having to place her neck in a tilted and awkward position when removing bags of coins.  She recalled experiencing neck pain when reaching towards the note cartridges when she was working in the ATM room.

5. Presently the applicant described the condition of her neck as terrible.  She said she is unable to turn her neck without turning her upper body.  She has pain in her shoulders and struggles to keep her head and neck upright.  She said her hands and wrists are weak and she struggles to open lids on jars and to cut food.  Her hands become numb when holding the steering wheel of her car, she uses both hands to lift a kettle and has pain opening doors, brushing her teeth and turning on a tap.  Additionally, the applicant said she suffers poor sleep, her arms throb at night and her hands and fingers are numb.  She said she suffers poor concentration and memory, her eyesight has deteriorated and she has gained weight, which she attributed to the prescribed medication (Transcript, p. 38, 39, 41).

6. The applicant was previously taking Endep, Lyrica, Prednisolone and Valium, but has ceased all medication, on advice from her doctors, because it was not giving her relief.  She did participate in a pain management program at the Geelong Hospital for two days but has been placed on a waiting list as a public patient to resume that treatment.  She said that whilst some medication had been prescribed to help her sleep, she stopped taking it because she had been told it’s not good.  You gain weight.  I’ve gained 8 kilograms taking it.  She said doctors in the pain management team had told her that the Endep medication was responsible for her deteriorating eye sight.  When asked to identify the doctor who gave her that advice, she said it’s on the packet (Transcript, p. 46, 50-51).

7. The evidence of the applicant, recorded immediately above, was challenged by counsel for the respondent.  He suggested to her that she had no difficulty with concentration or memory because during examination in chief she had no difficulty comprehending questions asked of her and recalling events. 

8. The evidence of the applicant concerning the onset of symptoms was also challenged by counsel for the respondent.  He asked the applicant to consider the contents of her compensation claim form dated 24 January 2011 where she recorded that the date and time of the injury was 14 November 2005.  In response to a question – What happened and how were you injured – she recorded, numbness and lack of sensation in both hands increasing shooting pain aggravates condition and causes aches by the end of a working day (Transcript, p. 64 – 65; T15, p. 28). 

9. It was suggested to the applicant that her absence of reporting pain in her elbows and forearms might indicate those injuries did not exist before 2010.  The applicant said she had numbness in 05 and 2010 is when the pain began.  She also noticed, in 2010, that she had no strength in her hands, her elbows began to ache and her fingers were locking when using her keyboard (Transcript, p. 29-30; Exhibit A1 at [8 – 9]).

10. The applicant was examined about clinical notes completed by Mr Parker on 10 November 2010 which record >5 years. c/-pain up both arms (R)>(L).  Works computer work 25 years.  Bank employee.  Some pins and needles and numbness – wakes her up night (Exhibit A5).

11. The applicant said when she became aware of those notes about 2 years after they were made, she spoke with Mr Parker and told him that he had obtained an incorrect history.  Apparently, he agreed to amend his notes of 10 November 2012 and recorded 14/12/12 CORRECTION – wrists and elbow pain only past few months. 5 years – pins, needles and numbness.

12. On 14 January 2011, about 3 months after the applicant commenced working on the coin machine, Ms Debra Browne, a rehabilitation consultant engaged by the respondent, attended the applicant’s workplace to assess the applicant and to make recommendations concerning the potential of her entering into a rehabilitation program.  Her report is found at T21. 

13. The appointment of Ms Browne arose out of a discussion between the applicant and her compensation claims officer on 24 November 2010.  In a memorandum (T9, p. 9) completed by the officer, Ms Mahfoud, the applicant had reported that she intended to claim compensation for bilateral carpal tunnel syndrome.  It was also recorded that the applicant had said that she had ongoing problems with both her wrists but has little children and never worried about doing anything about it.  It would appear that Ms Mahfoud discussed with the applicant, the potential of the claim being determined under the Victorian WorkCover scheme if the injury occurred in 2005 or determined under the Commonwealth scheme if the injury was found to be in 2010. 

14. Ms Mahfoud recorded in the memorandum that she would engage a rehabilitation officer.  The applicant was advised to complete an incident report which she did on the following day and recorded the date of an incident as 11/02/2005 at (time) 22:58.  The description of the incident was recorded by the applicant as no date an ongoing problem that I have had for a few years and have been diagnosed with carpel tunner (sic) and tendenitus (sic) in the elbows – specialist has related it to ongoing keyboard use over time (T11, p.19-22).  (The applicant denied that she had told Ms Mahfoud that she had had problems with her wrists.  She said that she had numbness in her right hand – Transcript, p. 117).

15. Ms Browne reported the pre-injury duties of the applicant involved customer service, attending the coin counting machine and clearing cartridges of money.  Customer service was reported by Ms Browne as being the applicant’s primary role, requiring her to use a computer and a telephone.

16. In her assessment of the relevant physical demands of the pre-injury duties undertaken by the applicant, Ms Browne described the percentage of total work time required to undertake those duties by the words occasional, frequent and repetitive.

17. The duties described as occasional – lifting coin bags, opening clamps in the coin machine, extended forward reaching, overhead reaching, extended grasp of money cartridges and sustained grip (when holding a telephone) were assessed as occupying between 6 and 33 per cent of total work time, being 3 – 20 minutes per hour.

18. The frequent duty was described as sustained sitting which was assessed as occupying between 34 and 66 per cent of total work time, being 20 – 40 minutes per hour.

19. The duties described as being repetitive – being fine motor manipulation of fingers when using the keyboard and mouse – was assessed as being undertaken at more than twice a minute.

20. In response to the assessment of Ms Browne, the applicant agreed that she would not have been working on the coin machine for 20 minutes in every hour.  She agreed that she would attend the machine 2 or 3 times each day and then for 3 or 4 minutes on each occasion.  The applicant also agreed that when undertaking her customer service role, she would not be typing and using her mouse twice in every minute.  Whilst the number of customers that she would attend each day, in her office, varied, some enquiries occupied 2 or 3 minutes only where verbal advice and discussion was involved.  The applicant estimated the number of customers she would attend and which required her to type was an average of 10 per day and sometimes more than 15.  On those occasions, the enquiry might only extend to changing a person’s address.  However, on other occasions the enquiry might involve an application for a personal loan which would require entry of considerable data in relation to the customer’s circumstances.  The applicant estimated that on about 3 occasions each day, she would serve a customer, whose enquiry required her to type information into her computer and make telephone calls (Transcript, p. 96‑ 99).

21. The applicant agreed that between October 2010 and January 2011, when she was assessed by Ms Browne, she had been away from the workplace for about 1 month on leave.  After Ms Browne completed her assessment, she no longer worked on the coin machine or removed the canisters which transferred money into the ATM room.  The applicant also agreed that from October 2010, she had a 10 minute rest break every half hour from her customer service work (Transcript, p. 99 – 101). 

22. From 5 October 2010, when Dr Al-Jabari issued a medical certificate and referred her to Mr Parker, to 16 August 2011, the applicant agreed that she did not complain of neck and elbow pain or discomfort to her doctors.  She said she had been consulting a chiropractor with respect to those injuries.  She agreed she had been attending the Westgate Medical Centre on a number of occasions within that period for treatment of depression.  She initially associated her depression with the pins and needles she was experiencing in her right hand.  However, when pressed, she agreed that her depression was also associated with her son’s serious illness. 

23. The applicant agreed that on 16 August 2011, when she consulted Dr Al-Jabari, she had not returned to work following the carpal tunnel surgery in May (Transcript, p. 102 – 104; T122, p. 276 – 281).  She said she woke up most mornings with severe stiffness in her neck and in August 2011, she always [had] stiffness, there’s always problems.  The applicant agreed she had performed the role of a customer service officer between January and May 2011 with regular rest breaks and then did not work until she consulted Dr Al-Jabari on 16 August 2011.  She returned to work for a short period and then commenced annual leave in January 2012.  In February 2012, the applicant had carpal tunnel surgery over her left wrist and returned to work in June 2012.  She worked for about 3 weeks as a concierge at 3 hours per day over 3 days per week.  The applicant was off work, taking accumulated annual leave and sick leave until she returned to work on 15 March 2013.  In the interim, she had the cervical surgery.  The applicant returned to working 3 hours per day over 3 days per week as a concierge until October 2013 when her employment was terminated (Transcript, p. 102-107).

24. The applicant said she suffered neck pain and tightness when she was kneeling on the floor when loading and unloading the ATMs and the coin machine.  She agreed she had not performed that work after January 2011 and on the occasions that she did work, as a concierge, she was standing.  She said she was struggling with standing at work during that time on light duties (Transcript, p. 108).

25. In her claim for compensation, the applicant recorded that she suffered the injuries of bilateral hand and arms including carpal tunnel syndrome and tendinitis neck injury back injury and psychological injury.  She also recorded that she first sought medical treatment for those injuries on 5 October 2010 (T8, p. 191).

26. The applicant agreed she did not suffer back and neck injuries on 5 October 2010 and the first notification to the employer of a psychological injury for which she was claiming compensation was made on 19 December 2011 when the claim form was lodged.  The applicant agreed that her doctors had not issued any certificates arising out of a psychological injury nor could she recall any occasion where her doctors had told her that illness was associated with her employment.  The applicant said that she had been consulting Mr Andrew Stott, a psychologist, as part of a pain management program that she had been attending.  She said she did not believe that she had a psychological injury but rather her symptoms of depression were associated with pain that she was experiencing (Transcript, p. 109-113).  Later, in re-examination, the applicant said she consulted Mr Stott on 8 occasions between December 2013, after her employment had ended and March 2014.  She said the respondent paid the cost of the first 3 consultations and the remaining 5 consultations were initiated by a referral from Dr Fotakis (Transcript, p. 133-134).

27. Dr Schutz prepared a medico-legal report dated 16 July 2013 at the request of the respondent (Exhibit R4).  The applicant was asked to consider the history he had obtained from her.  Dr Schutz recorded that the applicant had not had psychological problems before this.  However, she had seen a psychologist for reasons of her reaction to family problems with her son (page 3).  The applicant said she was probably emotional following a motor vehicle accident in 1997 and There was a bit of psychological problems after a bank robbery (Transcript, p. 127).

28. The applicant was asked to consider the clinical notes of Dr Al-Jabari of 2010 where he recorded that the applicant was depressed.  The applicant disagreed with that diagnosis and said I was probably crying (Transcript, p. 127).

29. Dr J. Douglas, a consultant psychiatrist, examined the applicant on a medico-legal basis on behalf of her solicitors.  She was informed in the course of the hearing that Dr Douglas did not record whether she had previously suffered from anxiety or depression.  The applicant said that she was probably more emotional and prior to her injuries she wasn’t depressed (Transcript, p. 127).

30. The applicant separated from her husband in 2012.  She agreed that there had been some difficulties in their marriage for many years (Transcript, p. 128).

31. In a clinical note dated 27 April 2012, Mr Han, the applicant’s neurosurgeon recorded the applicant gave him a history of had a sore neck many years, not usually bad, with pins and needles for 4 weeks and had woken about 6 weeks previously with increased neck pain and her left arm feeling heavy (Exhibit R7, document no. 14).

32. The applicant said she had a sore neck probably for about 10 years (she corrected that answer later and said it was probably about 6 years) and she associated it with posture, by her line of work (Transcript, p. 113 – 115).

33. In re-examination, and in reference to her earlier evidence that she complained to Dr Fotakis of neck pain during a consultation on 16 August 2011, the applicant said that she had prior symptoms in her neck which she described as basic pain, I guess and stiffness, nothing major.  She said she had pain and stiffness for about 6 years on and off, because I always blamed it on sitting down and just being in the same position (Transcript, p. 134).

    Medical Evidence

    Dr Fotakis

34. Dr Fotakis qualified as a medical practitioner in 1993 and has been in general practice at the Westgate Medical Centre from 2003.  He referred to his clinical file (Exhibit A3) when giving evidence in this review.

35. On 14 November 2005, Dr Fotakis consulted with the applicant and made the entry ?right carpal tunnel.  He said that entry indicated that the applicant would have been complaining to him of symptoms in her right hand, most typically numbness and pain which would have been suggesting of carpal tunnel (Transcript, p. 178).  He wrote a letter of referral to Dr Matkovic, a neurologist, requesting that he undertake nerve conduction studies.  He understood that the applicant did not undertake that procedure.

36. The next attendance by the applicant at the Westgate Medical Centre with carpal tunnel type symptoms was on 5 October 2010 when she consulted with Dr Al-Jabari, a colleague of Dr Fotakis.  The clinical entry for that day records the applicant attended for an illness unrelated to this review and for another issue related to a family member.  However, Dr Al-Jabari has recorded that the applicant had elbow pain and also has numbness in the hands for several years.  The applicant consulted with Dr Al-Jabari for about the following 12 months.  Dr Fotakis interpreted many of the entries made by his colleague. He said it was noted, on examination, that a neurological deficit was not found, light and deep sensation in the hands was normal and no clear picture of carpal tunnel syndrome.  He also noted that Dr Al-Jabari referred the applicant to the hand surgeon, who was later identified as Mr Parker.

37. The applicant was also referred to Dr Poon, a neurologist, who performed nerve conduction studies which did demonstrate the presence of bilateral carpal tunnel.  Dr Al‑Jabari provided the applicant with medical certificates and consulted with the applicant on 6 further occasions in February, March and April 2011.

38. On 19 April 2011 the applicant consulted with Dr Al-Jabari and complained of right shoulder pain.  His notes of that consultation record that he did not find any neurological deficit, there was a full range of movement in the shoulder and he queried whether she suffered referred pain from her right carpal tunnel.

39. The applicant had surgery over her right carpal tunnel in May 2011.  The notes record that on 8 June 2011, the applicant complained of still having lots of pain in the right hand.  An entry made on 15 July 2011 records that she complained of some tingling.

40. A note of consultation with Dr Al-Jabari on 16 August 2011 records the applicant complaining of pain and stiffness at the neck radiated to both shoulders and elbows, down to the hand ?cervical disc pathology.  On examination the applicant was observed to be in tears due to elbow, hands and shoulder pain now stiff neck.  Dr Fotakis interpreted those entries as indicating to him that the applicant was in severe pain because Dr Al-Jabari had prescribed Endone medication and the applicant was observed to be in tears.  He also noted that she was referred for an ultrasound on both elbows (which eventually did not record any abnormality) and a CT scan of her cervical spine.

41. On 20 November 2011 the applicant consulted with Dr Al-Jabari and complained of pain in her left hand/wrist and middle finger.  He also recorded that the applicant had severe degenerative changes in her neck and was awaiting referral to a pain management clinic in Geelong.

42. On 15 February 2012 the applicant had surgery over her left carpal tunnel and consulted with Dr Al-Jabari on 3 subsequent occasions for treatment of a wound infection.  On 2 April 2012 she consulted with Dr Fotakis complaining of pain for 3 weeks in her left trapezius, medial and scapular regions.  On examination she was found to be tender on palpation, there was pain with all movement of her neck but her shoulder and neurology was recorded as ok.  Dr Fotakis said he referred the applicant for an MRI scan because her symptoms were worse than previously.  He changed her medication to Lyrica and referred her to Mr Han, a neurosurgeon at St Vincent’s Hospital.  During subsequent consultations the applicant was complaining of severe neck pain and her medication was changed to Norspan patches because she was unable to tolerate painkilling medication taken orally.

1. Dr Fotakis said he was satisfied the applicant had bilateral carpal tunnel syndrome which was associated with the repetitive work, heavy work, over a long period of time.  He based that opinion on his clinical experience from persons he had treated for 20 years, who have similar symptoms who are always pretty much doing heavy manual work or repetitive work.  He gave a similar opinion in relation to the causation of the pain in her elbows. 

2. Dr Fotakis said the applicant’s neck was more problematic and taking into account what she has done in the last 25 years, I would say [the repetitive work] would be a significant contributor.  When asked to elaborate, Dr Fotakis said:

   …administrative duties. Typing. Customer service.  The lifting, especially the second work, and just the constant repetition day-in and day-out for the whole day for 20, 25 years.  I think that would be a significant contributor (Transcript, p.187).

3. In cross-examination, Dr Fotakis said, in the absence of any complaint of elbow pain during many attendances over a number of years at the Westgate Medical Centre, it would be a reasonable assumption that the first complaint of elbow pain was on the date recorded in the notes.  Dr Fotakis said, a similar view could be taken in relation to the complaints and symptoms associated with degenerative changes in her cervical spine, including any radiculopathy extending from her neck, through her shoulders, down her arms and into her wrists.

4. The histories recorded by both Dr Al-Jabari and Dr Fotakis were the subject of considerable scrutiny in cross-examination because it emerged that neither doctor had recorded, in the notes, any reference to the particular duties the applicant was required to undertake in her employment.

5. Dr Fotakis said that he had read a copy of the Workcom assessment completed by Ms Brown and had learnt something about the applicant’s duties.  He agreed that prior to receipt of that report, he had been issuing certificates of incapacity because he had formed the view that her injuries were work-related (Transcript, p. 192-193).

6. Although he reiterated his belief that the applicant’s work over a 25-year period was significant in the development of the injuries and the symptoms in her wrists and neck, Dr Fotakis said he had formed that opinion, despite her duties not being recorded, because he had assumed that he had discussions with the applicant about them.  He said he had known the applicant for many years, he was aware that she worked in a bank and he would have had an idea about it without actually recording it.  He agreed he had no detail, for example, about the extent of keyboard work the applicant would undertake but was confident that he would have asked her about her work, especially when completing compensation certificates (Transcript, p. 193).

7. Dr Fotakis was asked to consider, from the evidence of the applicant and Mr Arch, the branch manager, that the applicant did not undertake repetitive lifting of bags of coins, she did not type throughout the day nor did she lift or manoeuvre canisters of cash in the ATM room on a daily basis, but rather on a limited roster.  When it was suggested to him that the work as described, was not repetitive he said, it was relatively repetitive and he relied on his clinical experience over many years with other patients in maintaining his opinion that her work was responsible for her injuries (Transcript, p. 200 – 201).

8. Dr Fotakis said he was aware that one of the applicant’s duties was removing bags of coins from a machine which he understood was difficult because they were heavy.  He would not necessarily have recorded any history from the applicant that her work was repetitive.  He agreed that despite a complaint in 2007 of a stiff neck following a motor vehicle accident, neither he nor any other doctor at his clinic had recorded any specific trauma or duties undertaken at work to account for the symptoms in her neck.  He said he had assumed that those symptoms, which he was told arose whilst she was at work, were associated with her employment.

9. The absence in the clinical notes, of complaints of pain and other symptoms expressed by the applicant was highlighted in a report prepared by Dr Fotakis on 15 September 2011 (Exhibit R7, document no. 7).  The report is addressed to Comcare and records that the applicant had suffered chronic back and neck pain from 1995, she had been receiving regular physiotherapy treatment, she had been treated at the Westgate Medical Centre and her back and neck pain was getting worse.  Dr Fotakis said that he recalled preparing that report. He agreed the history of her back and neck pain was not documented and she had never complained about it in the clinical setting (Transcript, p. 199).  He agreed that in the context of the relationship he had with the applicant, as his patient, it can be construed as a little bit odd that she had not mentioned chronic pain to him (Transcript, p. 199).

10. Dr Fotakis was reminded that the applicant was off work for a considerable periods following each operation on her wrists and returned to undertake sedentary work with the respondent.  He said he was not aware of any literature which pointed to sedentary work significantly contributing to degenerative changes in the cervical spine.

11. When questioned about the applicant’s complaints of elbow pain, Dr Fotakis agreed that the ultrasounds had not identified any abnormality.  He said the presence of tenderness on examination suggested, in his experience, that persons develop pain without a specific diagnosis being made.  He said I think you can infer that work is a contributing factor.  When asked whether he expressed that opinion as a possibility or as a probability he said he thought it was highly likely (Transcript, p. 196). 

    Mr Parker

12. Mr Parker is a consultant surgeon who has been in practice for about 40 years.  On presentation to him in November 2010, the applicant had pain in both forearms, which had been intense in the preceding months and with pins and needles which suggested to him that she had carpal tunnel syndrome.  He obtained a history of the applicant having been engaged in pretty much full-time computer work for the last 25 years (Transcript, p. 230).

13. On examination, he found that she had pain in the regions of her elbows, together with acute tenderness over both epicondyles.  Clinically, those complaints suggested to him that she was suffering from chronic tendonitis (later confirmed by biopsy of the flexsor tendon sheath) being a condition distinct from carpal tunnel syndrome.  In his opinion, tendonitis results from chronic degeneration of the musculotendinous insertion in the elbows and is likely to result from persons undertaking repetitive type activity, using keyboards for years and years and years (Transcript, p. 230).

14. It was also his opinion that the condition of carpal tunnel syndrome can have a primary (idiopathic) or secondary cause.

15. Mr Parker said primary carpal tunnel syndrome is found in younger women without apparent reason and without a history of physical activity.  A secondary carpal tunnel occurs where there is a narrowing in the carpal tunnel, compressing the median nerve and tendons.  He associated secondary carpal tunnel with excessive repetitive physical activity which could be light or heavy.  He said he has seen it in patients who are plumbers and carpenters and has frequently seen it in persons who engage in typing.

16. In his experience, the mechanism for tendonitis has its origin in swelling of tendon sheaths which become inflamed and reduce space within the carpal tunnel.  The median nerve then becomes compressed producing symptoms of pins and needles and numbness.  On clinical examination, he was able to produce a response similar to an electric shock, which was typical of a compressed median nerve and which satisfied him that the applicant did have carpal tunnel syndrome. 

17. In cross-examination, Mr Parker said the applicant presented to him during the first consultation in November 2010 with a history of pain in her wrists and forearms over the preceding 5 years.  He said the referring letter from her general practitioner had given a similar history.  He acknowledged that the applicant had contacted him about 2 years later and advised that she had only had pain in her forearms for a few months before the first consultation.  He then amended his notes to record that history which he did not think was particularly relevant (Transcript, p 237).  On the basis of the applicant’s evidence in this review and on the history that he obtained of the applicant having had pins and needles during the preceding 5 years, he was satisfied that the carpal tunnel syndrome was then existing.

18. Mr Parker said that he did not have any clinical note to indicate that he advised the applicant, during his initial consultations, to cease the work duties which she said were responsible for her carpal tunnel syndrome nor did he issue her with medical certificates recording restrictions on her work.  He could not recall having had a discussion of that type with the applicant but said obviously I would have indicated to her that this was work-related (Transcript, p. 241 – 242).

19. Mr Parker understood, from the description of the applicant’s work as given to him by her, that the extent of her keyboard use could be regarded as repetitive, involving speed and continuity.  He said any sort of keyboard work, any repetitive, minor-it doesn’t have to be major, could cause a carpal tunnel syndrome.  When he was asked whether there were any studies that supported that conclusion, he said he had examined a number of them but considered most to be less than satisfactory (Transcript, p. 244-245).  

20. Counsel for the respondent informed Mr Parker that Mr Stapleton, who examined the applicant and provided a report to the respondent, had concluded that there was no scientific basis to connect carpal tunnel syndrome with keyboard work.  He said he did not agree with that conclusion and he had problems with specialists who are giving opinions outside of the purely clinical situation.  He was informed that Mr Stapleton had specifically reported that for many years, carpal tunnel syndrome had been erroneously attributed to tenosynovitis surrounding the flexor tendons and MRI scanning pointed to the problem residing within the median nerve.  Mr Stapleton also reported that for reasons which are unknown, the condition is regarded as genetically predetermined and is not caused or worsened by repetitive movement.  Mr Parker disagreed and said my experience tells me otherwise (Transcript, p. 249).

21. I asked Mr Parker whether he understood the applicant’s work only involved typing and he said it could involve all sorts of activities.  It was basically repetitive short active rapid activities.  It doesn’t necessarily have to be light or heavy.  He later added that such activity would have to have been undertaken:

    …Over a long, long period of time.  I mean we’re talking here not just a few months or a few years, but certainly my experience has been that this history, 10, 15, 20 years is quite common which is a lot different than when the so called RSI epidemic was in full flight where this history was much, much shorter. 

    He said his opinions were largely influenced by his experience with other patients over a long period of time.  Mr Parker added that if work activities were not undertaken rapidly but you’re doing things at a slow steady rate then I think the answer would be you’re less likely to be involved in these problems (Transcript, p. 251 – 252).

    Mr Stapleton

22. Mr Stapleton practised as a plastic surgeon and hand surgeon.  He said he had performed carpal tunnel surgery on 3000 or 4000 occasions.  From 1999 he has conducted a medico-legal practice only.  He examined the applicant at the request of the respondent and provided a report dated 18 February 2011.  On the documented information made available to him and on the history from the applicant, he was satisfied that she had previously suffered from carpal tunnel syndrome.  He was not satisfied it was attributable to her employment with the respondent.

23. Mr Stapleton said when he graduated in 1968 the standard teaching was that carpal tunnel syndrome was associated with repetitive activities which caused tenosynovitis secondary to tendon swelling which compressed the median nerve.  However, those who practised as hand surgeons understood that teaching was just frank nonsense.  He said that teaching was not based on any studies.  He said the prevalence of MRI scanning of tendon biopsies has demonstrated that the prime pathology rests not with the tendons but within the (median) nerve itself for reasons unknown (Transcript, p. 255 and 258).

24. Mr Stapleton consulted with the applicant before she had her first carpal tunnel operation.  He was satisfied by his examination of the applicant that she did have carpal tunnel syndrome, it was appropriate that she had surgery for it and he was satisfied that she was thoroughly genuine.  However, it was his opinion, based on some research studies and his experience in medico-legal practice, that carpal tunnel syndrome has no association with repetitive work.

25. He said many published research articles miss the point.  Some conclude that there is an association with repetitive work and others conclude that there is no association.  He said the best study that he had read was by Falkiner and Myers[1] which concluded that unless persons work in a very cold environment, carpal tunnel syndrome is less likely to be work‑related.

    [1] Sonja Falkiner and Stuart Myers, ‘When exactly can carpal tunnel syndrome be considered work-related?’ (2002) 72 Australian and New Zealand Journal of Surgery 204.

26. Mr Stapleton conducted research in his medico-legal practice in relation to persons referred to him and concluded that 70 per cent of persons presenting with carpal tunnel syndrome are female and 70 per cent of that group suffer from it during the age of menopause.  He said most of the women that he assessed were process workers but he did not enquire into the nature of their work.  An important feature for him was that none of them were hairdressers, or concert piano players who practice for 8 hours each day, or road diggers.  He also examined records in public hospitals and was satisfied that the incidence of carpal tunnel syndrome was more common in persons who were in the cohort of 48 to 54 years of age.  He concluded that people get carpel tunnel syndrome whether they work or not and it is not more common in workers (Transcript, p. 259-260).

27. Mr Stapleton was aware that Mr Parker had expressed opposing views, based on his experience.  He also accepted that some practitioners distinguished between the development of carpal tunnel syndrome in a primary sense and the aggravation or acceleration of it.  It was his opinion that carpal tunnel syndrome cannot be accelerated or aggravated by repetitive work and he remained of the opinion that it could not be caused in a primary sense by work.  Other than being aware that the applicant had worked as a customer service officer in a bank, he made no enquiry into her specific duties because it would not have influenced his opinion of there being no connection between carpal tunnel syndrome and employment.  He said on the basis of the Falkiner and Myers study, if the applicant had worked in a freezer all day and did not wear gloves, he would be satisfied that carpal tunnel syndrome was not caused by that work but it could well have caused some aggravating factor which stays with her (Transcript, p. 261 – 263).

    Mr Schutz

28. Mr Schutz is a consultant surgeon who provided a report dated 16 July 2013 following a consultation with the applicant on 9 July 2013, which was arranged by the respondent. (Exhibit R4).  He conducted a neurological examination of the applicant’s forearms, about 15 months after carpal tunnel surgery on the left wrist (similar surgery over the right wrist was performed in the previous year) and was satisfied there was no clinical evidence of carpal tunnel syndrome persisting.

29. Mr Schutz was aware of a large body of published medical literature concerning carpal tunnel syndrome which concluded that the cause was not known.  There were reports of structures within the carpal tunnel being compressed which produce symptoms and there were references to genetic factors.  He was also aware that recent publications dismissed tenosynovitis of flexor tendons being attributable to carpal tunnel syndrome.  He agreed with an opinion of Mr Stapleton that contemporary opinion points to the median nerve being implicated.  It was his opinion that activity involving heavy, forceful and rapid use of a person’s fingers, for example heavy labouring, is associated with a higher incidence of carpal tunnel syndrome.  He said the only predisposition to carpal tunnel syndrome is work in industries involving the use of vibrating tools.  He regarded the applicant’s work involving typing and working as a bank teller as relatively minor and the hand, wrist and finger movements could be equated with many other activities outside work.  Mr Schutz said it was highly improbable that repetitive, short, rapid activities over many years would contribute to the development of carpal tunnel syndrome (being the opinion expressed by Mr Parker) (Transcript, p. 275, 282 – 283).

30. Mr Schutz was aware that the applicant had been treated by Mr Han and had surgery over her cervical spine.  He was satisfied that the applicant had suffered multilevel degeneration which was unrelated to her employment.  He was aware that the applicant had undertaken some work resting a telephone hand piece in the crook of her neck on 4 or 5 occasions each day.  In his opinion, an adopted posture for short periods is unlikely to cause or contribute to the degeneration.  On the description of her posture at work, he was satisfied that it was not strained, extreme or forced.  In his experience, a connection between work and degenerative cervical disease would exist only if there had been a documented injury (Transcript, p. 275 – 276, 282 – 283).  He dismissed an opinion reported by Mr Brownbill who provided a medico-legal opinion to the applicant’s solicitor that repetitive neck flexion and twisting contributed to the aggravation of pre-existing asymptomatic cervical degenerative disease.  He said it would be a specious argument to suggest that anything less than extreme movement or trauma would change the progress of the degeneration (Transcript, p. 290).

    CONCLUSION AND REASONS FOR DECISION

31. Despite the applicant claiming compensation for the injuries of bilateral hand and arms including carpal tunnel syndrome and tendonitis, neck injury, back injury and psychological injury (T85, p. 191), as the hearing unfolded, the focus was on the bilateral carpal tunnel syndrome and the cervical spine (Transcript, p. 300-305).

32. There was a reference to the applicant having back pain following a motor vehicle accident in 1995 (when she was travelling to work) and some discomfort in her lower back when climbing on and off large stools when working as a teller (before 2005).  There was no evidence in this review of any back injury (or lower back injury) arising out of or in the course of the applicant’s employment which was responsible in whole or part for any claim for compensation under the SRC Act. In the absence of that evidence, the decision under review, insofar as it concerned the denial by the respondent of liability in relation to the claimed back injury, will be affirmed.

33. It was unclear in this review whether the claimed condition of tendonitis was a discrete injury or indicated a pathology within the applicant’s arms.

34. Mr Parker suggested a biopsy of the tendon sheath, taken during carpal tunnel surgery, pointed to it emerging from degeneration in the applicant’s elbows (at [97]), yet an ultra sound did not detect any abnormality.  Dr Fotakis referred to epicondyle tenderness and used the expression elbow pain and tennis elbow interchangeably (Transcript, p. 182).  Both were satisfied the condition was associated with repetitive work.

1. There was also enquiry into whether the cervical degeneration was causing radicular symptoms (of pain) extending into the arms, which, in the absence of findings on ultra‑sound, suggested the applicant did not have tendonitis.

2. On balance, I will find that the applicant did have tendonitis and consistent with the evidence of Mr Parker, it was a discrete injury or disease, but, for reasons which will be recorded later, nothing turns on this finding.

3. Although both parties arranged medico-legal opinions from consultant psychiatrists, none were called to give evidence before the Tribunal.  Counsel for the respondent conceded that if the respondent was found liable for the carpal tunnel syndrome, the cervical spine injury and the tendonitis, it would be open to find, on the basis of the opinions expressed in the reports, that the applicant has suffered a psychiatric illness, secondary to the physical injuries and the pain she experienced (Transcript, p. 301).

4. The respondent filed an amended Statement of Facts and Contentions before the hearing resumed on 7 August 2014. It contained an extensive pleading concerning the consequences faced by the applicant, having made an election, as alleged, within the meaning of s 52 of the SRC Act, by her recovery of compensation under the Victorian WorkCover scheme.

5. Section 52 is reproduced as follows:

   (1)A person who would, but for this section, be entitled to compensation under this Act and benefits under an award in respect of the same injury, or in respect of the same loss of, or damage to, property, is not entitled to both but shall elect whether to receive the compensation or the benefits.

   (2)       An election made by an employee is irrevocable.

   (3)Where an employee makes an election to receive either compensation under this Act or benefits under the award but compensation is not payable under this Act, or benefits are not payable under the award, as the case may be, in respect of the injury, or the loss of, or damage to, property, the election has no effect.

   (4)Where an employee has made an election to receive compensation under this Act, that compensation is not payable unless the employee makes a claim under section 54.

   (5)Where an employee who has made an election dies, the election does not have effect in relation to his or her dependants.

   (6)In this section, award means an award, determination, order or agreement by which provision is made for, or in relation to, the grant of any benefits to or in relation to employees or their dependants in respect of injury or disease causing death or incapacity, or in respect of the loss of, or damage to, property, in circumstances connected with the employment of those employees, being:

   (a) a determination made under the Public Service Arbitration Act 1920; or

   (b)an award, determination or order made, or agreement entered into, under a law of the Commonwealth relating to workplace relations; or

   (c)an award, determination or order made, or agreement entered into, under a law of a State or Territory.

6. The applicant did make a claim for compensation under the Victorian WorkCover scheme on 24 January 2011.  She claimed compensation for hand, elbows, tendonitis and carpal tunnel injuries occurring on 14 November 2005 (T15, p. 28-29).  The application was resolved during a Conciliation Conference convened on 11 April 2011 by an officer with the Accident Compensation Conciliation Service.  A certificate recording the outcome of the conference records that compensation was payable to the applicant pursuant to the Accident Compensation Act 1985 (Vic). The costs associated with each carpal tunnel operation were met as a consequence of the negotiated outcome.

7. I am satisfied that the applicant has made an election under s 52 of the SRC Act. She is a person who was entitled to claim compensation under the Commonwealth legislation in respect of injuries. She made an election in 2005 to receive compensation under the Victorian Act and eventually did receive compensation under an award, defined within s 52 (6)(c), relevantly, as an agreement entered into under a law of a State or Territory. The entitlement to receive the compensation and the payment of it was recorded as being in accordance with the Act.  The certificate completed by the conciliation officer records that the parties resolved the application and the certificate records that it is evidence of the resolution of this dispute between the parties and the terms on which this dispute has been resolved (T52, p. 98). 

8. I am satisfied that the parties reached an agreement to resolve that application, by compensation paid to the applicant under the Victorian scheme. In those circumstances, she has made an election within the meaning of s 52.

9. The respondent contended at paragraph 77 of the amended Statement of Facts and Contentions that where an election has been made, compensation is not payable pursuant to s 118 of the SRC Act. The respondent submitted that the applicant was therefore, precluded from recovering compensation in respect of her carpal tunnel injury. However, s 118 records that if a person receives compensation under a State scheme in respect of an injury, compensation is not payable under the SRC Act in respect of that injury.

10. The applicant contended in this review that she suffered an injury which arose out of or in the course of her employment with the respondent after she received compensation under the State scheme. It was submitted that she continued to work after 11 April 2011, being the date the Victorian proceedings were resolved and was therefore, permitted to pursue the claim under the SRC Act. It cannot be determined from the conciliation certificate at what point in time the carpal tunnel injury was assessed for the purposes of the compensation payment.

11. The injury was alleged to have been present in 2005, as evidenced by the claim form.  At 11 April 2011, the applicant, having continued to work in the interim, had been advised by her doctors to have bilateral carpal tunnel surgery.  She did eventually undertake that surgery and there were periods thereafter, where she did work.  It is therefore, arguable that the injury for which compensation is claimed by these proceedings is not the same injury for which compensation was previously recovered.

12. Counsel for the applicant submitted that the applicant’s carpal tunnel injury was aggravated by her employment and the date of injury was deemed to be 5 October 2010 pursuant to s 7(4) of the SRC Act. The claim in relation to the degenerative cervical injury was also put on the basis of it having been aggravated by the employment and the date of injury deemed as 16 August 2011 (Transcript, p. 302).

13. For reasons which will emerge, consideration of whether the applicant does have any remaining entitlement to compensation under the SRC Act in relation to the bilateral carpal tunnel syndrome does not need to be pursued because I am satisfied, if it is treated as an injury, it did not arise out of or in the course of the applicant’s employment. Alternatively, if it is treated as a disease, it was not contributed to in a significant degree by the employment (s 5A and s 5B of the SRC Act). I have reached the same conclusion in relation to the cervical condition and the tendonitis, although it was not a focus of the submissions. It also follows that there will be no necessity to make any finding of the deemed dates of injury.

14. The applicant’s treating general practitioner and treating surgeon both gave evidence in this review.  They impressed me as being both competent and sympathetic to the applicant’s circumstances.  They both supported her contention that the carpal tunnel syndrome was attributable to the employment.  They relied on their practice experience of treating many other persons with a similar injury who had been engaged in manual work, sometimes involving lifting and repetition.

15. Both doctors had very limited knowledge of the applicant’s work duties other than a general belief that she was principally engaged in typing and did some work in relation to the coin machine and the ATMs.  Additionally, they had no knowledge of the periods of time the applicant was occupied in a typical workday in undertaking her various duties.

16. Dr Fotakis understood that the applicant was engaged in manual, repetitive work, throughout the duration of her employment.  His opinion connecting the carpal tunnel syndrome with the employment was based on that belief.  The history given to Mr Parker caused him to believe that the applicant was principally engaged in keyboard work.  It was his opinion that any repetitive work involving short, active and rapid activities over a long period of time, would explain the development of carpal tunnel syndrome. 

17. The applicant had been employed by the respondent from 1986.  There was a period of about 10 years when she worked on a part-time basis.  She therefore, had a very long history of employment involving customer service, working as a teller and in the ATM rooms, but her work on the coin machine was not undertaken before October 2010.  An examination of the duties undertaken by the applicant in her employment does not support a conclusion that her work was repetitive or rapid.

18. The applicant estimated that she would be typing for an aggregate of about 5 ½ hours each day.  I am not satisfied that the evidence supports that estimation.  She did spend a considerable period of time at a keyboard but she was not constantly typing.  That work was usually undertaken in the presence of a customer, either at her desk or at a counter. 

19. When working at her desk, she would be occupied with a customer for up to 45 minutes and would then type information she obtained from the customer into pro-forma documents which were displayed on her screen.  Typically, the information would be names and addresses, dates of birth, various numerals and a short statement concerning the nature of the enquiry or application.  Information of that type was not recorded rapidly, rather after questions were asked and responses were given.  The applicant would have used other key strokes to access other pages or documents and she also used a mouse.  Interviews of this duration occurred on about 3 occasions each day.  Mr Arch estimated about 2 minutes would be occupied typing within each 45 minute interview.  There were occasions where the applicant would have made hand written notes and would have completed the forms, by typing, after the interview had concluded.  It was the evidence of Ms Attard, who performed a similar job, that this work was not performed at speed or without interruptions.

20. When working at a counter, the applicant would respond to customers’ enquiring, for example, about interest rates or replacing PIN numbers.  Those enquiries would occupy 2 or 3 minutes on average and involved minimal keyboard use.

21. The applicant was rostered to work in the ATM room for 3 days in every third week and then for between 40 and 60 minutes per day, depending on whether she was working alone or with another person.  That work required the applicant to lift up to 3 cylinders (one at a time) containing banknotes, sometimes reaching across the top of a wheelie bin, and then carry them over a very short distance to a bench where the notes were placed into canisters.  The banknote canisters, when filled weighed about 4kg. That work was not undertaken repetitively or rapidly.

22. Work involving the coin machine required the applicant to remove bags of coins from time to time.  That process involved removing a clip, extracting the bag, carrying it over a short distance to a teller and replacing the bag.  On some occasions, two bags were carried, one in each hand.  The heaviest weight of a filled bag of coins was 6.8kg (the bag containing $2 coins).  There were occasions when the clips were difficult to manoeuvre and there were other occasions when attending the coin machine occurred more frequently.  But it was not work which was repetitive or undertaken rapidly.

23. An examination of the work undertaken by the applicant satisfies me that whilst each of these functions were of relatively short duration, they were undertaken at a steady rate and on occasions, did involve some exertion, especially lifting the coin bags.  However, I am satisfied that none of her duties could be described as repetitive work, performed rapidly.

24. The applicant’s work involving the coin machine was of very limited duration.  The coin machine was introduced into the Werribee branch in October 2010.  The applicant consulted Dr Al-Jabari complaining of carpal tunnel type symptoms on 5 October 2010, that is, shortly after the coin machine was introduced.  She ceased that work, 3 months later, in January 2011, after Ms Brown had made her assessment of the applicant’s work.

25. In the period between October 2010 and January 2011, a schedule of the applicant’s absence from work (Exhibit R9) indicates that she was absent for 3 days in October, 4 days in November and on leave between 6 and 24 December and on 30 December.  Her absence from the workplace in that 3 month period points to a minimal aggregate of work on the coin machine.

26. Additionally, subsequent to the workplace assessment in January 2011, the applicant ceased lifting the note cylinders in the ATM room and she had a 10 minute rest break every half hour when undertaking her customer service work.

27. The applicant then performed keyboard work only, as described above, until May 2011 when she had the first carpal tunnel operation.  She was off work for a few months and then returned to work as a concierge for 3 hours per day on 3 days per week.  That work was undertaken by her standing and walking only.  She then had the left carpal tunnel surgery in February 2012.  She returned to work in June 2012 for about 3 weeks as a concierge.  She was then certified as unfit for work because of her neck symptoms and had the cervical surgery in September.  She did not return to work until March 2013 with additional restrictions on her work as a concierge.  That work was undertaken sitting for half an hour and standing for half an hour on those days when she did work.  The respondent terminated her employment in October 2013.

28. It follows, that from January 2011 to May 2011, the only work undertaken by the applicant of a physical nature involving the use of her arms was the keyboard work which was then undertaken with a 10 minute rest break every half hour.

29. Whilst the applicant was away from work after May 2011, her neck symptoms were emerging.  Dr Al-Jabari noted at consultation on 16 August 2011 that the applicant complained of neck pain radiating into both shoulders and elbows.  He eventually referred her to Mr Han who performed a laminectomy at 4 levels.  A diagnosis of degenerative cervical disease precipitating the need for the laminectomy was not in dispute.

30. Mr Schutz was the only witness who gave evidence in relation to the degenerative disease in the applicant’s neck.  In his opinion, it could not be connected with her employment in the absence of a trauma which would have accelerated the progress of that disease.  There was no evidence of such a trauma. 

31. He dismissed a proposition that her posture of holding the hand piece of the telephone in the crook of her neck on 4 or 5 occasions each day would have accelerated the progress of the disease.  Mr Brownbill, a consultant neurosurgeon provided a report at the request of the applicant’s solicitors expressing an opinion that the applicant’s work aggravated her pre-existing degenerative disease.  He was not called to give evidence.  Mr Han, the treating surgeon was not called to give evidence.

32. The evidence of Mr Stapleton was confined to the carpal tunnel injuries.  I found his evidence to be rigid and unhelpful.  It was his opinion that the pain associated with carpal tunnel syndrome emerges from the median nerve for reasons which were unknown.  He was dismissive of surgeons who held a contrary view, including Mr Parker who has been in practice for more than 30 years.  Mr Stapleton also relied on a journal article published in 2002 which concluded that only working in a very cold environment was likely to give rise to carpal tunnel syndrome.  The article was not put into evidence and the authors of it were not called.  Mr Stapleton did not say why he preferred that opinion.

33. Mr Schutz acknowledged that there may be some industries where carpal tunnel syndrome might emerge.  However, the work undertaken by the applicant with the respondent did not satisfy him that there was a relationship between it and both the carpal tunnel syndrome and the cervical disease.

34. The duties undertaken by the applicant were examined with some precision in this review.  When consideration is given to those duties, her restrictions and lengthy absences from work after May 2011, she cannot satisfy Mr Parker’s thesis connecting carpal tunnel syndrome with employment, namely, undertaking repetitive short active rapid activities over a long period of time.  Put another way, if work activities were not undertaken rapidly but were undertaken at a slow, steady rate then it is less likely that carpal tunnel syndrome could be connected with the employment.

35. On the balance of probabilities, I not satisfied the applicant did or was required to undertake work which could be described as active or rapid.  From her description, her work routine could be described as varied, not repetitive and undertaken with differing postures.

36. Accordingly, irrespective of whether the applicant’s carpal tunnel syndrome, cervical disease and tendonitis are classified as injuries or diseases, I am satisfied that they did not arise out of or in the course of her employment nor did the employment contribute to a significant degree.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

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

Associate

Dated 28 August 2014

Date(s) of hearing	28-30 May 2014 and 7-8 August 2014
Counsel for the Applicant	Mr C. Hangay
Solicitors for the Applicant	Hounslow & Associates
Counsel for the Respondent	Mr J. Wallace
Solicitors for the Respondent	Commonwealth Bank of Australia, Workers' Compensation Unit