Re Cross and Comcare - [2018] AATA 52

Cross and Comcare (Compensation) [2018] AATA 52 (22 January 2018)
Division:GENERAL DIVISION
File Number: 2016/4523
Re:Margaret Cross
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:22 January 2018
Place:Perth

The decision under review is affirmed.
.........[sgd]....................................................
Deputy President S Boyle
CATCHWORDS
COMPENSATION – commonwealth employee – bilateral carpal tunnel syndrome – applicant claimed compensation – bilateral carpal tunnel syndrome not significantly contributed to by employment – respondent not liable to pay compensation for bilateral carpal tunnel syndrome – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – s 4, s 5A, s 5B, s 14
CASES
Comcare v Power [2015] FCA 1502
Crouch and Comcare [2013] AATA 608
Dunstan v Comcare [2011] FCAFC 108
Reardon and Comcare [2015] AATA 360
Schodde and Comcare (Compensation) [2015] AATA 598
SECONDARY MATERIALS
Explanatory Memorandum, Safety, Rehabilitation And Compensation And Other Legislation Amendment Bill 2006
REASONS FOR DECISION
Deputy President S Boyle
22 January 2018
THE APPLICATION

This is an application for review of a decision of the delegate of the Chief Executive Officer of the Respondent dated 2 August 2016 under s 62(5) of the Safety, Rehabilitation and Compensation Act 1988 (The Act) (T16) to affirm the determination of 22 June 2016 (T10) to deny the Applicant’s claim for compensation under s 14 of the Act for bilateral carpel tunnel syndrome.
The application was made to the Administrative Appeals Tribunal on 26 August 2016 (T1).
BACKGROUND
The Applicant commenced employment with the Australian Public Service on 22 September 1982 (T6 at 21). She commenced employment with the Department of Human Services (DHS) on 23 January 1989 (T4, p 14).
The Applicant remained employed by DHS until she retired on 14 November 2016.
The Applicant says in her witness statement dated 3 March 2017 (Exhibit A2) that:
38.In February 2016, I started to notice a change in the sensation in my right hand and fingers. I wouldn’t really describe my symptoms as pain, but when I turned my arm in a particular way I would get an electric shock sensation and my hand would ache.
39.My symptoms worsened and I had reduced sensation in the tips of my fingers. On one occasion the numbness lasted around 10 hours.
40.My symptoms persisted and I reported my symptoms to my Supervisor, Brad McBride on 18 February 2016. I then lodged a report of the ESS system.
…
44.In March 2016, I started noticing the same sensation I was having in my right hand was now present in my left hand. I was experiencing the loss of sensation; however, the symptoms were not as severe as my right hand.
45.I then reported the symptoms in my left hand on the ESS system and my employer then arranged for someone to come out to do an assessment and it was recommended that I take regular breaks and try to alternate the use of each hand.
46.I then lodged a workers’ compensation claim for both wrists.
Prior to the incident in February 2016, the Applicant had experienced issues with her elbows. In her witness statement of 3 March 2017 (Exhibit A2) the Applicant says:
8. In November 2013, I developed pain and discomfort in my left elbow.
9.I attended on my General Practitioner and I was diagnosed as having lateral epicondylitis.
10.I was then referred for an ultrasound scan of my left elbow in March 2014 and was later referred for an ultrasound guided injection into my left elbow in August 2014.
11.The injection provided approximately 3 months relief of my symptoms however my symptoms then returned.
12.At the worse, I would rate my pain level as being 7/10, with 10 being the worst pain.
13.I then had 2 further ultrasound guided injections which did not provide any significant relief.
14.Dr Rao then recommended protein rich plasma injections (PRP) to treat my symptoms.
15.I had two PCP injections in late 2014 which provided relief of my symptoms.
16.In early 2015 I started to develop pain and discomfort in my right elbow.
17.I had an ultrasound and was then given a PRP injection in my right elbow which provided significant relief of my symptoms.
18.I made a workers' compensation claim for the injury to my left and right elbow and this claim was accepted.
19.I was provided with some ergonomic equipment including a roller mouse and ergonomic keyboard and voice activated software to minimise the amount of typing I was required to do and I managed to return to my pre-injury duties.
20.In late 2015 I was told that I would be required to move from my position at Centrelink to work at Medicare.
21.Around this time, I was also having some mental health issues which had been ongoing for a number of years. In 2012 I had made a claim for workers' compensation as a result of bullying in the workplace by my Supervisor. The claim was not accepted and I did not pursue the claim and instead decided to seek private treatment with my GP and Psychologist.
22.I was told that the reason I was required to move was because there was no position available at Centrelink. At this time, I was an ASO Level 3 employee and I was advised that the requirement was for an ASO level 4 and that I was unable to fulfil this requirement.
23.I was advised that I would be transferred to Medicare for a 3-month trial.
The Applicant also suffered from depression for which she was receiving treatment prior to the issues with her elbows arising. In April 2015, following a conversation with the Applicant’s director at Centrelink, Mr Alan Jones, the Applicant’s doctor, Dr Stephen Wilson, provided a letter (Annexure AJ1 to the Amended Witness Statement of Alan Jones – Exhibit R5) which, relevantly, said:
As discussed I confirm that Margaret suffers from two major issues which influence her work capacity, one being her currently accepted Workers’ Compensation disorder, Bilateral Chronic Common Extensor origin Syndrome – this is well in hand.
The other is her longstanding severe Major Depression. This has proven difficult to get into remission fully despite psychotherapy, Wednesdays free from work and multiple pharmacological agents…
…
On medical grounds I recommend/confirm the following based entirely on Mrs Cross’s mental Health issues.
1.Mrs Cross is still capable of full hours ie FT employment however working Mon Tye (sic) Thus Fri – she is most strongly recommended to continue Wed off.
2.She be re-located within DHS to a different are with less complex and mentally taxing work. eg Medicare. She should not be exposed to undue negativity eg call centre, and would benefit from reduced direct customer contact.
As a result of the recommendation from Dr Wilson the Applicant was directed to attend a work trial at Medicare. The work trial at Medicare commenced on 6 July 2015 and finished on 2 October 2015.
The Applicant says that while she was at Medicare her role involved data entry using Dragon voice recognition software. She says that she had a lot of trouble using the software which had difficulty recognising her voice. She says also that while undertaking this work trial with Medicare she was required to work five days a week. Previously, while working at Centrelink, she had been able to work the required 37.5 hours a week over four days.
The Applicant was not offered a position with Medicare upon completion of the work trial.
It seems that on completion of the work trial at Medicare on 2 October 2015 there was not a suitable existing position for the Applicant at Centrelink. According to the Applicant’s then director, Mr Alan Jones, on 2 November 2015 the Applicant returned to work at the Compliance Risk Branch (Perth) as an APS3 in a role that was specifically created for the Applicant. That role involved the Applicant working 5 days a week.
There is some dispute between the parties as to exactly what the Applicant’s work upon her return to Centrelink involved. In paragraph 11 of his amended witness statement of 6 October 2017 (which, in this regard, was in the same terms as his first witness statement of 26 June 2017), Mr Jones described the work that the Applicant was required to undertake upon her return in November 2015 as follows:
11.Between 2 November 2015 and 14 November 2016 Ms Cross was predominantly scanning documents and entering earnings coding. Ms Cross used a multifunction device to scan documents on to the system, which involved Ms Cross typing in her 10 number and then the customer reference number, placing documents into the paper feeder at the top of the machine and pressing start, as outlined in the following document 'AJ4'. Ms Cross used the Dragon dictate software to orally enter the earnings codings into her computer. Ms Cross did not scan documents continuously throughout the day. Ms Cross continued to perform the amount of work outlined in Mr Barrett's email of 5 September 2015, that Is, approximately two hours and ten minutes of work per day.]
The Applicant in her supplementary witness statement dated 15 September 2017 (Exhibit A3) described the work that she was required to undertake in the following terms:
12.In relation to paragraph 14 of Mr Jones' witness statement I do not agree that I performed the amount of work outlined in Mr Barrett's email of 5 September 2015, being two hours and ten minutes of scanning per day.
13.I maintain that my scanning duties in November were consistent with those outlined in my previous witness statement at paragraph 37. When scanning the documents, I had to remove staples and type in my ID number plus a ten digit customer reference number and also the debt ID number. I then had to press a couple of buttons for the printer to start scanning. This process had to be repeated with each document.
14.I was also required to attend to triaging jobs which involved computer work including keying. I was also initially handling mail each morning and afternoon, however after a few weeks I was no longer able to complete this role as the bags containing the mail were very heavy.
15.When I returned to Centrelink in November 2015 I was still working 5 days per week following the trial at Medicare .I did not feel like I was coping well with this and on 7 December 2015 I signed a part time agreement and reduced my hours from 37.5 hours per week to 30 hours per week. The reduction in my hours meant that I was able to get a partial pension from my superannuation fund.
Paragraph 37 of the Applicant’s witness statement of 3 March 2017 (Exhibit A2), to which she makes reference in the passage cited above, was as follows:
37.My new position at Centrelink involved scanning in documents continuously throughout the day. I would estimate that I would scan in over 100 documents per day. I was also required to remove staples from the documents I was scanning and the movements were very repetitive.
In December 2015, the Applicant entered into a part-time work agreement by which her working hours were reduced from 37.5 hours a week to 30 hours a week and the Applicant was not required to work on Wednesdays (Exhibit AJ5 to the Amended Witness Statement of Mr Jones, Exhibit R5).
Mr Jones says that that agreement was “as a result of her non-compensable depression” (Paragraph 12 of his amended witness statement dated 6 October 2017). The reason for that agreement is not specified in the agreement. In her witness statement of 15 September 2017, responding to Mr Jones’s witness statement, the Applicant did not dispute that assertion and says at paragraph 15 of that witness statement that:
15.When I returned to Centrelink in November 2015 I was still working 5 days a week following the trial at Medicare. I did not feel like I was coping well with this and on 7 December 2015 I signed a party-time agreement and reduced my hours form 37.5 hours per week to 30 hours per week.
On 18 February 2016, the incident described in paragraph 5 above occurred. As noted at paragraph 40 of the Applicant’s witness statement of 3 March 2017 (Exhibit A2), on the day of the incident the Applicant lodged an on-line report on what she describes as the ‘ESS system’. No explanation is provided of what that system is or what the report was, however, the Tribunal assumes that that report is that which appears as T6.5 and as attachment A4 to the Agency Statement dated 23 May 2016 (T6) which describes that attachment as the report that the Applicant lodged on 18 February 2016. In that report the Applicant identified the “Incident or Injury” as being:
Pins and needles in right hand and tips of 3 fingers in both hands
And the part of the body affected as:
Right and left hands
In that report the applicant described “how [she] sustained the Incident or Injury (Mechanism)” as:
Just started getting pins and needles
On 1 March 2016, the Applicant sent an email to Ms Jane Doherty (T6.6) of DHS in the following terms:
Just wanted to let you know that I started getting pain in both arms yesterday. Sunday I cleaned down my patio with a high pressure water cleaner.
I think that this has stirred them up…Just when I thought it was all good.
I have Drs app on next Tuesday and will see how its been for the week, plus will be getting fingers checked as still altered sensation in both hands plus if I stretch or move my right hand in an odd way it feels like an electric shock going across my hand and up my middle finger…plus varying degrees of pins and needles in both hands.
On 4 March 2016, Ms Vanessa Strahan, the Applicant’s former team leader, prepared a work evaluation report of the Applicant’s role (ST1.2 at 7). Ms Strahan wrote that the key duties undertaken by the Applicant were “Scanning documents on to customers records - 60%; Earning coding on customer records - 25%; Triaging work allocation for site - 10%; Collate outgoing mail - 5%” (ST1.2 at 8).
On 8 March 2016, the Applicant attended Dr Grant Townsend, general practitioner, who issued a first medical certificate (T6.7). That certificate stated the Applicant’s history to be:
2-3 Weeks (sic) history of numbness in both hands with shooting symptoms into both hands. Worse on right side.
New work role related to bilateral Tennis Elbow (current WC claim for it awaiting finalisation with Dr Rao).
Main role paperwork but highly repetitive.
…
Right hand dominanat (sic)
Symptoms: (L) 5/10, (R) 7/10.
…
Diagnosis: Bilateral Carpel Tunnel Syndrome.
In his clinical note of the consultation on 8 March 2016, Dr Townsend noted that the Applicant’s management of her diabetes was “improving but still poor”, and he expressed the opinion that her diabetes was a “possible explanation for multiple tendinopathies”. He also noted that “CTS increase risk due to poorly controlled DM and obesity”.
On 8 March 2016, Dr Townsend referred the Applicant to HandWorks for treatment with a “hand therapist for night splints, neutral desensitisation and gentle stretches/exercises” (T6.8 at 49). Dr Townsend explained in his letter to HandWorks that the Applicant had received “approval for early intervention treatment from employment” and the “aim is to prevent need for WC Claim” (T6.8 at 49).
On 13 March 2016, Ms Kara Cepo, occupational therapist, of HandWorks wrote to Dr Townsend saying “I hope to see a decrease in Margaret’s symptoms in the next 4-6 weeks, however I expect it to take at least 3 months before her symptoms are resolved” (T6.9 at 52).
On 16 March 2016, Dr Tony Briede, radiologist, wrote a letter to Dr Townsend in which he outlined the results of an ultrasound of the Applicant’s right wrist (T6.12 at 56). Dr Briede reported that the Applicant had “thickened flatted median nerve within the right-sided carpal tunnel with ultrasound findings consistent with carpal tunnel syndrome” and “non-symptomatic small ganglion arising from the volar side of the radiocarpal joint” (T6.12 at 56).
On 23 March 2016, Dr Arjun Rao, sport and exercise physician, wrote a letter to Dr Wilson about the Applicant and noted that “objectively her elbow symptoms have flared up somewhat as a result of slipping over outside the house onto her patio a few weeks ago. However, her symptoms are slowly starting to settle”.
On 28 April 2016 the Applicant submitted a claim for workers’ compensation form (T4). That form identified the injury or illness as “Carpel tunnel left and right wrists” and the affected parts of the body as being “Right and left hands” (T4 at6).
On 10 May 2016, Mr Leigh Conway, physiotherapist, of Injury Treatment undertook a task analysis of the Applicant’s work duties and provided a report on the same day (T6.18, p 74). He noted that the Applicant spends half of her day entering information into a database with the aid of Dragon dictate software, and the other half of her day scanning documents. In regard to both tasks, Mr Conway recorded that the Applicant “reported she can complete this task without any aggravation of her injury” (T6.18 at 74-75). That report was, it appears, signed by the Applicant on 10 May 2016 (T6.18 at 75).
Somewhat oddly, on that same day, 10 May 2016, Dr Townsend issued a progress certificate of capacity (T6.18, p 72) which stated that the applicant “was unable to attend or continue work this afternoon and last Thursday 05/05/16 due to increasing wrist pain on the left side after changes to duties. Has resolved.(sic)”
On 7 June 2016, Dr Peter Silbert, neurologist, provided an EMG report in which he concluded that the Applicant has “severe right median neuropathy at the wrist (carpal tunnel syndrome) and “moderately sever left median neuropathy at the wrist (carpal tunnel syndrome)” (T7, p 100).
On 13 June 2016, Dr Eugen Mattes, occupational physician, assessed the Applicant at the request of the Respondent. On 20 June 2016 Dr Mattes provided a report to the Respondent (T8, p 101). Dr Mattes concluded that the Applicant “has developed bilateral carpal tunnel syndrome, which on the balance of probabilities is related to her weight gain following conversion to insulin for treating her type 2 diabetes mellitus” in late 2015 (p 108). Dr Mattes opined that “[the Applicant’s] employment on the balance of probabilities will not have contributed to a significant degree to the development of bilateral carpal tunnel syndrome” (p 110).
On 21 June 2016 a recommendation to not accept claim 1130118/3 was issued by the case manager to the delegate under the Act (T9) and on 22 June 2016 the delegate notified the Applicant of the decision to not accept the claim on the basis that, while it was not disputed that the Applicant suffered bilateral carpel tunnel syndrome, there was insufficient medical information to support the Applicant’s employment as having caused the condition (T10).
On 8 July 2016 the Applicant requested a reconsideration of the decision (T12) on the basis that the Applicant’s “carpel tunnel injury as a direct result of her employment with the Department of Human Services”
On 2 August 2016, the case manager issued a recommendation to affirm the determination of the delegate made 22 June 2016 and the Applicant was notified on 3 August 2016, that the decision was affirmed (T15 and T16).
The Applicant lodged the application for review of that decision with the Administrative Appeals Tribunal on 26 August 2016.
On 17 October 2016 Ms Paris Champion, occupational therapist, undertook a workplace assessment and provided a report to DHS (ST1.4, p 22). In her report Ms Champion wrote that “throughout the observation of one Earning Activity Review being completed, an average of 1.5 mouse clicks per minute and 1 key stroke per minute was assessed as a requirement of the role” (p. 23). She stated that “Dragon Software was generally compatible with completing the review; with the exception of some commands that were unsuccessful and hence required mousing or typing use instead” (p. 23).

On 14 November 2016, the Applicant took early retirement.
On 29 November 2016, the Applicant had carpel tunnel release surgery to her right hand (Exhibit A3).
In her supplementary witness statement of 15 September 2017, the Applicant states:
18.I elected to take an early retirement with Centrelink on 14 November 2016 as a result of my ongoing health problems, the most significant reason for my retirement was that I required surgery to my right wrist and I did not have enough leave to cover me for the period of time I would require off work to recover. That surgery was on 29 November 2016.
19.Since resigning form my employment my symptoms have improved as a combination of being able to rest more and the surgery that I had in November 2016.
On 22 December 2016 Dr Evan Jenkins, general practitioner, assessed the Applicant and provided a medical report at the request of the Applicant (ST3, p 30). Dr Jenkins concluded that the Applicant’s “bilateral carpal tunnel syndrome is a work-related condition and is thus compensable under the SRC Act, although she may have been predisposed by way of her elevated BMI, female sex, age and type 2 diabetes” (p 36).
On 22 February 2017 Mr Damian Ireland, hand surgeon, provided a report to the Respondent on the papers (ST5, p 46). Mr Ireland concluded that “the more or less simultaneous onset of carpal tunnel syndrome in a middle-aged overweight and possibly menopausal lady with diabetes mellitus is unlikely to be work related” (ST5, p 49). Mr Ireland expressed the opinion that the Applicant’s work duties would not have aggravated the symptoms of her bilateral carpal tunnel syndrome more than her “normal activities of daily living and normal household chores” (ST5, p 50).
On 15 May 2017, Dr Jack Edelman, rheumatologist, assessed the Applicant and provided a medical report at the request of the Applicant. Dr Edelman wrote that “the carpal tunnel like problems seem to have resolved nicely” (Exhibit A8, p 2). Dr Edelman concluded “as far as I would be concerned your client’s condition is attributable to exactly what she describes of the 18th February 2016” and that “it would seem to me beyond doubt that the work performed has contributed to a significant degree to produce her current symptomatology” (p 2). Dr Edelman explained “personally I would not believe that the diabetes has anything to do with her carpal tunnel” (p 2).
THE EVIDENCE
The factual evidence
The Tribunal had before it a set of T-Documents (T1 to T17) comprising 149 pages (R1) and supplementary T-Documents (ST1 to ST 5) comprising 65 pages which were provided by the Respondent.
The Applicant provided:
(a)witness statement of Applicant dated 3 March 2016 (A2); and;
(b)supplementary witness statement of Applicant dated 15 September 2016 (A3).
The Respondent provided:
(a)witness statement of Alan Jones dated 26 June 2017 (R4); and
(b)amended witness statement of Alan Jones dated 6 October 2017 (R5).
The Applicant and Mr Jones gave oral evidence at the hearing and were both cross-examined.
The medical evidence
The following medical reports were provided to the Tribunal or were included in the T-Documents:
(a)Joint statement of Dr Evan Jenkins (general practitioner) and Dr Eugen Mattes (consultant occupational physician and epidemiologist) dated 13 September 2017 (A5);
(b)Report Dr Eugen Mattes dated 20 June 2016 (T8);
(c)Report of Dr Jenkins dated 22 December 2016 (ST3);
(d)Report of Dr Edelman (rheumatologist) dated 15 May 2017 (A8);
(e)Report of Mr Damian Ireland (hand surgeon) dated 22 February 2017 (ST5);
(f)Report of Mr Damian Ireland dated 4 October 2017 (R7); and
(g)EMG Report Dr Silbert (neurologist) dated 7 June 2016 (T7).
Additional medical reports, correspondence and certificates were included in the T documents from Dr Grant Townsend, the Applicant’s general practitioner (T5 and T6.8), Dr Stephen Wilson, another of the Applicant’s GPs, Ms Kara Cepo (occupational therapist) (T6.14), Dr Tony Briede (radiologist) and Dr Sobha Eranki (GP).
Dr Jenkins and Dr Mattes gave evidence concurrently and submitted a joint report setting out the matters upon which they agreed and those upon which they disagreed. The thrust of the joint report was that the doctors agreed that the Applicant suffered bilateral carpel tunnel syndrome but disagreed on the causation, in particular the connection between the bilateral carpel tunnel syndrome and the Applicant’s relevant work.
A large number of medical articles, academic papers and studies were referred to in the medical evidence. Copies of some were provided. Dr Jenkins and Dr Mattes in giving their evidence concurrently and in the joint report, both referred to different studies, specifically and generally, as did Dr Edelman and Mr Ireland when they gave evidence. Mr Ireland’s report also attached a number of studies and papers on carpel tunnel syndrome, in particular the pathogenesis of carpel tunnel syndrome and its causes including possible links to work related activities. These studies and papers are from various sources in Australia and overseas and span a significant number of years.
As noted above, Dr Jenkins and Dr Mattes conferred to issue the joint report and gave evidence at the hearing concurrently. They were cross-examined by counsel for the parties. Dr Edelman and Mr Ireland also gave oral evidence and were cross-examined.
LEGISLATION
Section 14 of the Act, entitled “Compensation for injuries”, relevantly provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 5A of the Act to mean:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
Disease is defined in s 5B of the Act as follows
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
Ailment is defined in s 4 of the Act to mean:
…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
The Applicant’s Statement of Facts Issues and Contentions (ASFIC) identifies the issues as follows:
ISSUES
1. Whether the Applicant has suffered a compensable ‘injury’, either a physical injury which arose out of or in the course of the Applicant’s employment or a disease contributed to, to a significant degree, by that employment; and
2. Whether the Respondent should accept liability for the Applicant’s injury and all related medical treatment ad weekly payments for all periods incapacity
The Respondent’s Statement of Facts Issues and Contentions (RSFIC) identifies the issues as follows
The issue for determination by the Tribunal is whether the Respondent is liable to pay compensation to the Applicant under section 14 of the SRC Act in respect of the claimed physical condition. This involves consideration of:
4.1.Whether the Applicant suffers from an injury, other than a disease, which arose out of, or in the course of, the Applicant’s employment for the purposes of paragraph 5A(1)(b) of the SRC Act;
4.2.Whether the Applicant suffers from an “ailment” as defined in section 4 of the SRC Act, or aggravation of such an ailment, for the purposes of the first limb of the definition of “disease” in section 5B of the SRC Act;
4.3.If so, whether the ailment or aggravation of same was contributed to, to a significant degree, by the Applicant’s employment with DHS and is therefore a “disease” for the purposes of section 5B of the SRC Act and may therefore be an “injury” for the purposes of paragraph 5A(1)(a).
The Tribunal would express the issues for determination to be as described by the Respondent above.
CONSIDERATION
The nature of carpel tunnel syndrome
It is common ground between the parties that the Applicant suffers, or at the relevant time, suffered, from carpel tunnel syndrome. In order to determine whether the Applicant suffered an injury or has a disease, it is necessary to determine the nature of carpel tunnel syndrome.
The Macquarie Dictionary defines “syndrome” as being:
noun
1.the pattern of symptoms in a disease or the like; a number of characteristic symptoms occurring together.
2.a set of behaviour characteristics, usually thought of as related to a particular cause such as age, family background, etc.: that behaviour is part of the adolescent rebellion syndrome.
The Oxford English Dictionary relevantly defines “syndrome” as:
Pathol. A concurrence of several symptoms in a disease; a set of such concurrent symptoms.
In his report dated 4 October 2017, Mr Ireland described carpel tunnel syndrome as follows:
1. What is bilateral carpal tunnel syndrome?
Carpal tunnel syndrome is more correctly described as median nerve compression neuropathy at the wrist. The carpal tunnel is fixed in dimension being bounded by the taut and thick volar carpal ligament on the palmar aspect of the wrist and surrounded by carpal bones on each side and at the dorsal aspect of the wrist. The contents of the carpal tunnel include the two flexor tendons to each finger and a single flexor tendon to the thumb, together with the median nerve with its associated median artery. The median nerve is located between the volar carpal ligament at the front of the wrist and the underlying flexor tendons. The median nerve is sensitive to compression. When the contents of the carpal tunnel, namely the flexor tendons increase in size, the median nerve is compressed. Initially the median artery is obliterated causing ischaemia of the median nerve. Chronic compression causes scarring and irreversible damage to the median nerve. The initial symptoms of carpal tunnel syndrome are numbness and tingling in the finger tips. If the compression continues, numbness of the fingers becomes permanent. Pain can radiate proximally into the forearm and eventually the small muscles associated with the thumb become paralysed. Other factors that can cause compression of the median nerve by increasing pressure in the carpal tunnel include arthritis of the wrist joint, arthritis of the basal thumb joint, a space occupying lesion within the carpal tunnel such as a tumour of the flexor tendon sheath and tenosynovitis such as is seen with rheumatoid arthritis, psoriatic arthritis and systemic lupus.
Dr Jenkins in his evidence at the hearing, given concurrently with Dr Mattes, described carpel tunnel syndrome in the following way:
DR JENKINS: So, the definition of a syndrome is a group of symptoms. It doesn't specifically refer to signs or investigative findings. Carpal Tunnel Syndrome refers to a syndrome of sensory symptoms affecting the arm below the elbow, predominantly the radial aspect of the hand in the palm aspect, so the radial side of the ring finger typically but not always, middle index finger and thumb on the front, and advanced or severe Carpal Tunnel Syndrome people can get neuropathic pain extending approximately up - particularly up the volar forearm. Now, it presents in different ways. It's not the case that there is a typical - there are typical Carpal Tunnel objective findings, but symptoms are quite variable and this is why the diagnosis is sometimes missed. But typically people present with sensory symptoms; tingling, pins and needles, paraesthesia, and pain, often burning associated with a feeling of numbness, and that can progress to - as the median nerve is compressed in the wrist - so the cause is that the carpal tunnel which is shallowed by any tunnel through the carpus has got a very fixed ligamentous structure across the top of it which is not able to expand. So if there is anything which increases the pressure in the carpal tunnel - carpal tunnel, the median nerve is squashed inside the tunnel and so they get median nerve symptoms distally and approximately. So that can progress to actual numbness. But yes, typically it presents with symptoms at night, but not invariably. It's also typical that symptoms present when people are doing certain activities; classically using vibrating tools or doing something very "wristy" and repetitive and forceful in the wrists because these movements increase the pressure in the carpal tunnel. And that's why as Eugene pointed out, people get it at night because they are probably flexing when they sleep. And so when we suspect this, we have clinical science, you might have reduced sensation and distribution in the hand, positive Phalen's test, so flex like this, hold it there for 30 seconds to a minute and people will describe the symptoms.
When Dr Edelman gave evidence at the hearing, the Tribunal asked him the following question:
DEPUTY PRESIDNT: Is, in your view, carpal tunnel, a manifestation of a symptom, or is it an underlying pathology? In other words, can you say, “Well, you might have carpal tunnel, but you are asymptomatic at the moment”. Or, does carpal tunnel only occur once a symptom manifests itself?
to which Dr Edelman responded:
DR EDELMAN: You’re talking about, you know, a pre-existing condition. I don’t know how you would answer that, but I would guess that what you are saying is probably correct. That the median - the - can be under - well, it can be under pressure and you don’t get symptoms and the reason you know that, is people will go in and have the carpal tunnel electrical test and he’s often he will try - he will compare it and he will say, the other side seems to have mild carpal tunnel, the right side has got severe. So, yes. It has to be there and then, eventually there has to be a straw that breaks the camel’s back, isn’t it? I mean, people have severe wear and tear in their neck - have no symptoms. Have a motor vehicle accident and suddenly they’ve got symptoms.
(17 October 2017 Transcript page 116)
The Tribunal then asked the following:
DEPUTY PRESIDENT:         And I suppose that my follow up question would therefore be, if for whatever reason, whether it is a change in lifestyle or a change in activity, a person ceases to exhibit the symptoms, would they still be considered to have carpal tunnel?
in response to which the following exchange took place:
DR EDELMAN:  No. I see what you’re getting at. The definition of the carpal would be the fact that it has symptoms.
DEPUTY PRESIDENT:         Yes, yes?
DR EDELMAN:  Because, it’s carpal tunnel syndrome.
DEPUTY PRESIDENT:         Syndrome?
DR EDELMAN:  Which is defined by the symptoms.
DEPUTY PRESIDENT:         That is - is that, in medical terms, the distinguishing characteristic of something being described as a “syndrome”?
DR EDELMAN:  Yes.
DEPUTY PRESIDENT:         It is a collection of symptoms, rather than?
DR EDELMAN:  Correct. Yes. Syndrome by - correctly would be a collection of symptoms and signs that has no direct aetiology as such. It could have multiple aetiologies.
…
The only caveat of that would be genetic syndromes.
…
But they are still - where you’ve got a genetic defect in the chromosome - gives you a syndrome, which is a constellation of symptoms. But, in rheumatology there are many - we call many things syndromes that actually do have a cause. But, you are right, the carpal syndrome is defined by its symptoms, but it can be caused by, I suppose, somebody pushing a knife into your nerve.
(17 October 2017 Transcript pages 116 to 117)
Paragraph 2 of the Applicant’s closing submissions describes carpel tunnel syndrome in the following way:
There is no disagreement amongst the medical witnesses. The applicant was suffering from carpel tunnel syndrome. As a “syndrome”, that refers to a collection of symptoms rather than the underlying pathology (Dr Jenkins, Dr Edelman and Mr Ireland). Dr Edelman and Mr Ireland agreed that the underlying pathology was median nerve entrapment.
The Tribunal’s understanding of the effect of the evidence given by the doctors, all of whom were very helpful, clear and extremely professional in their evidence, was that carpel tunnel syndrome, as the name suggests, is descriptive of a set of symptoms and that absent those symptoms it could not be said that someone is suffering from carpel tunnel syndrome. An individual may have a narrowing of or increased pressure in the carpel tunnel which may make the median nerve vulnerable to being compressed if the wrist is moved in a certain way, however, until the wrist is so moved causing the median nerve to be compressed resulting in the triggering of symptoms, the individual could not be said to have carpel tunnel syndrome. Similarly, after an occurrence of an event which triggered symptoms, if the individual were not to move his or her wrist in a way that would cause the median nerve to be compressed, that is be asymptomatic, the individual would not be considered to be suffering from carpel tunnel syndrome. The individual would have a risk of or susceptibility to a “triggering” of symptoms, but would not be considered to suffer from carpel tunnel syndrome.
While that distinction may seem academic, and irrelevant to treating medical practitioners whose concern is, quite correctly, diagnosis and treatment for relief from symptoms, it is, in the Tribunal’s view, significant for the purposes of determining whether an injury simpliciter (that is an injury for the purposes of s 5A(1)(b) of the Act – injury other than a disease) has occurred.
Did the Applicant suffer an injury under s 5A(1)(b) of the Act?
The Applicant submits in paragraph 4 of her closing submissions that:
Leaving the work connection to one side, the applicant submits that what she suffered on 18 February 2016 was an “injury” in terms of s 5A(1)(b). Suddenness of onset is often indicative of an “injury” (as opposed to a disease) but it is not a prerequisite (see Prain v Comcare [2017] FCAFC 143 at [73]). In this case there was sudden onset.
The Respondent answers that argument in its closing submissions in the following way:
6.The Respondent says that a sudden onset of symptoms on 18 February 2016 does not constitute an injury simpliciter within the meaning of the Act.
7.It is accepted that the ordinary definition of the word "injury" includes sudden physiological change resulting from a disease, as in the case of stroke resulting from progressive heart disease or the rupture of an aneurysm as a result of the progressive weakening of an arterial wall. [Hume Steel Ltd v Peart (1947) 75 CLR 242 at 252-253 per Latham CJ. See also The Commonwealth v Ockenden (1958) 99 CLR 215 at 223-224 per Dixon CJ, Fullagar and Taylor JJ; Hockey v Yelland (1984) 157 CLR 124 at 137 per Gibbs CJ; Accident Compensation Commission v McIntosh [1991] 2 VR 253 at 263 per Murphy J (Crockett and Cummins JJ agreeing); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 326 per Brennan CJ, Dawson and Gaudron JJ, 335 per Toohey, McHugh and Gummow JJ, 347 per Kirby J; Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 at [35]-[36] per Gleeson CJ and Kirby J].
8.In Kennedy, their Honours Gleeson CJ and Kirby J said the following of Zickar, McIntosh and Burch (at [39]):
“All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. ... If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.” [emphases added]
9.The Respondent submits that the occurrence of relatively common symptoms of CTS in one wrist only on 18 February 2016 is not sufficient to characterise the CTS as an injury, because there was no sudden and identifiable physiological change from the Applicant’s physical state immediately prior to the 18 February 2016. The symptoms were typical of the underlying pathology that constitutes CTS and not the result of any change of that pathology on 18 February 2016.
Sudden onset of symptoms

The Tribunal agrees with the Respondent’s analysis. Sudden onset of symptoms may, as the Applicant says, be “often indicative” of an ‘injury’”, however, the sudden onset of symptoms is not, of itself, an injury. The sudden onset of symptoms such as pain, tingling or numbness, may indicate that there has been a physiological change at the time of the onset of the symptoms which would constitute an injury, however, even as the Applicant concedes, it is indicative only.
The common factor in the cases cited by both Applicant and the Respondent relating to the issue of injury and the relevance of the sudden onset of symptoms, was that an injury simpliciter for the purposes of the Act required a change in a pathological state. The sudden onset of symptoms may indicate a change in an underlying pathology, but they are not, of themselves, sufficient to constitute an injury. Even the analogy cited by the Applicant in her closing submissions, thrombosis, supports the need for the onset of symptoms to be caused by an underlying change in a physiological condition. Paragraph 3 of the Applicant’s closing submissions argues that:
An analogy might be a thrombosis: over a period, platelets would gradually accumulate at a certain point in the blood vessel but there would be no disability until the final platelets caused a blockage at which point the pathology would manifest itself in the form of symptoms.
In the thrombosis example there is a physical change underlying or causing the onset of the symptoms. If one were to take “before and after” images, there would be an observable change, namely the blood vessel not blocked before and the blood vessel blocked after. The triggering of a symptom in the carpel tunnel syndrome case, however, after the wrist is straightened and the pressure on the nerve released, there would be no difference, or at least no lasting difference, in the nerve.
The Respondent in its closing submissions put it as follows:
A contrast can be drawn with the examples used by the Applicant. A disc prolapse has been held to be an injury where it constitutes a discrete physiological change that is not an inevitable consequence of a pre-existing back condition [Health Insurance Commission v Van Reesch [1996] FCA 1118; 45 ALD 302]. In Van Reesch the Full Court relevantly stated that “[t]he rupture, being the prolapse, has been treated. If there was no rupture there would be no event answering the description of personal injury and Mrs Van Reesch would be driven to rely upon the definition of disease and section 29 of the 1971 Act”. Similarly, a thrombosis may be an injury only where it causes “a sudden disturbance” of an applicant’s “physiological state”, such as where the cerebral artery is occluded resulting in a stroke. [Australian Postal Corporation v Burch [1998] FCA 944.
The Respondent also referred to the decision of Deputy President Bean in Schodde and Comcare (Compensation) [2015] AATA 598 wherein at paragraph [26] Deputy President Bean observed:
…even if I were to accept … that Mr Schodde did experience an acute exacerbation of symptoms before he left work on 28 May 2013, I have concluded that there would be no sufficient basis for a conclusion that this was secondary to a disc prolapse/protrusion or other disturbance of Mr Schodde’s lumbar discs, so as to potentially amount to a physiological change sufficient to constitute an “injury” within the meaning of the SRC Act. Rather, on the evidence before me, it was simply an episode of symptomatology secondary to his underlying degenerative back condition.
While on the issue of the sudden onset of symptoms as being indicative of an injury simpliciter for the purposes of the Act, the Tribunal observes that some of the examination of the medical witnesses and the submissions that have been made by the Applicant, proceeded on a potentially incorrect assumption. In paragraph 1(b) of her closing submissions, the Applicant “highlights” “the onset of symptoms over a two hour period on 18 February 2016 whilst in the course of her duties”. Also at paragraph 10 of the Applicant’s closing submissions the claim is made that “Symptoms came on over a couple of hours. She was scanning at the time.”
At the hearing Dr Jenkins was taken to page 3 of his report of 22 December 2016 (ST3) (see 16 October 2017 Transcript, page 77 at 20) wherein he had recorded that the Applicant had told him that after:
…returning to work for Centrelink (in late 2015) she recalled that she was doing a great deal of keyboard and scanning work and while at work doing this she recalled developing reduced sensation or altered sensation in the tips of the right ring, middle and index fingers which she said felt “odd”. Her symptoms worsened until she had reduced and altered sensation with pins and needles and tingling in the radial side of the right ring finger, the middle and index fingers.
…
This symptom also occurred worse at night if her arm was dependent and she would often wake with all three fingers quite numb. On one occasion the numbness lasted 10 hours.
It was put to Dr Jenkins at the hearing that the evidence of the Applicant given that morning in the hearing had been that the symptoms had only begun over a two hour period on 18 February 2016 (see 16 October 2017 Transcript, page 40 at 32). It was put to Dr Jenkins that:
MR BRUNS:…the evidence we had this morning was that the beginning (of the symptoms) was 18 February 2016. There was no clear evidence of identical symptoms before 18 February 2016.
The relevant evidence of the Applicant had been (Transcript page 17, at 7 onwards):
MR BRUNS: And those symptoms that came on, did they come on over a period of minutes, hours, days?
MS CROSS:Sort of when I first noticed it, it probably came on gradually over a couple of hours
Although it was not specifically identified, the Tribunal assumes that that two hour period was on 18 February 2016.
The history that Dr Jenkins recorded in his report of 22 December 2016, based on what the Applicant had told him, was not consistent with the Applicant’s oral evidence that the first time that she experienced any symptoms was with the onset of symptoms over a two hour period at work on 18 February 2016. That history recorded by Dr Jenkins, however, is consistent with the Applicant’s evidence at paragraphs 38 to 40 of her witness statement of 3 March 2017 quoted at paragraph 5 above. Her evidence in those paragraphs was that she first noticed the symptoms on some unspecified date in February 2016, that those symptoms worsened over time, including one episode of numbness for around 10 hours, and that because the symptoms were “persisting”, on 18 February 2016, she reported her symptoms to her supervisor and lodged the report on ESS on that day. That is a significantly different story to the claim that symptoms first occurred suddenly over a two hour period on 18 February 2016.
The Tribunal prefers the Applicant’s narrative in paragraphs 38 to 40 of her witness statement of 3 March 2017 that symptoms started some time prior to 18 February 2016 and that what happened on 18 February 2016 was not an injury (change in an underlying pathology) that occurred on 18 February 2016 but was, as the Applicant described it, a result of the symptoms that she had been experiencing for some time persisting.
Accordingly, the Tribunal finds that there was not a sudden onset of symptoms on 18 February 2016 and that the Applicant had bilateral carpel tunnel syndrome symptoms prior to 18 February 2016.
There was no evidence from which the Tribunal could form the view that there was a change in an underlying pathology on 18 February 2016. For the above reasons, the Tribunal finds that there was no injury for the purposes of s 5A(1)(b) of the Act sustained by the Applicant on 18 February 2016 or any other identifiable date.
Did the Applicant suffer an injury under s 5A(1)(a) of the Act?
The parties agree that carpel tunnel syndrome is an ailment for the purposes of the Act (Respondent’s closing submissions paragraph 17). While agreement is always a good starting point, the difficulty in the present case is that if one accepts that carpel tunnel syndrome is a collection of symptoms (Dr Jenkins’ evidence Transcript page 50 and Dr Edelman’s evidence Transcript page 116) what is it that must be contributed to or aggravated to a significant degree for the purposes of s 5B(1) of the Act?
A symptom is the product of an underlying pathology. The consensus of the medical evidence is that the symptoms are caused by the underlying pathology of median nerve entrapment. In his report dated 22 February 2017 (ST5, p 48) Mr Ireland described it as:
Carpel tunnel syndrome is more correctly termed median nerve compression neuropathy at the wrist.
In addition to his comments set out above, when Dr Edelman was asked to comment at the hearing on that definition put forward by Mr Ireland he responded as follows (Transcript page 117):
DR EDELMAN:           … I can understand what he’s (Mr Ireland) saying, but I don’t think you would ever - what would he call it and some people do. I will often write median nerve entrapment, as opposed to carpal tunnel syndrome.
DR HENDERSON:     Yes. Median nerve neuropathy, I think is the - - -?
DR EDELMAN:           Yes. Because, if you say carpal tunnel syndrome, you mean median nerve entrapment and what he is saying is, you should say median nerve entrapment.
DR HENDERSON:     Right?
DR EDELMAN:           Yes. Or, say carpal tunnel-like symptoms when they may not have median nerve entrapment. Yes.
In the Tribunal’s view it would make little sense to treat the symptoms as being the ailment for the purposes of s 5B(1) of the Act which must be “contributed to, to a significant degree, by the employee’s employment”. The symptoms come and go depending on the activity being undertaken by the employee. The more logical issue to consider in this regard is whether an underlying pathology which causes or predisposes the employee to the onset or triggering of symptoms was contributed to by the required degree by the employee’s employment.
Two things emerged from the medical evidence. The first is that carpel tunnel syndrome is multifactorial (evidence of Mr Ireland, Transcript of 30 October 2017, page 10 at 11, Dr Mattes, Transcript of 16 October 2017, page 47 at 26, page 70 at 14, Dr Jenkins Transcript page 52 at 18, page 62 at 16, page 70 at 1 and 11, Respondent’s closing submissions paragraphs 16 and 23). The second is that the science linking work activities to carpel tunnel syndrome is not settled (Dr Jenkins, Transcript of 16 October 2017, page 67 at 37, page 68 at 1, 6 and 13, page 76 at 26).
Based on the evidence of the respective medical experts and the many reports, papers and studies referred to by those doctors, it is clear that there is a wide range of views amongst medical practitioners and researchers as to the link between work and carpel tunnel syndrome. It seems to be accepted by most of the authorities and studies to which reference was made, that carpel tunnel syndrome is associated with repetitive wrist movement although there does appear to be a difference of view as to whether this wrist movement has to involve force or movement outside the normal range of flexion or extension outside the normal range (see paragraph 86 above).
Dr Jenkins in his report of 22 December 2016 (ST3) expressed the view that:
Ms Cross developed carpel tunnel syndrome, again in the context of very repetitive and prolonged keyboarding and scanning work in the office of Medicare and Centrelink. In my opinion Ms Cross’s bilateral carpel tunnel syndrome is a work related condition and is thus compensable under the Act, although she may have been predisposed by way of elevated BMI, female sex, age and type 2 diabetes
Mr Ireland’s report (on the papers) of 22 February 2017 ST5 at 48) expressed the view that:
Carpel tunnel syndrome is more correctly termed median nerve compression neuropathy at the wrist. This condition commonly occurs in middle age-aged postmenopausal females and is often bilateral. The compression is caused by degenerative thickening of the lining around the flexor tendons that also occupy the carpel tunnel causing compression of the overlying and more sensitive neural tissue of the median nerve. This is commonly seen in diabetes mellitus.
The more or less simultaneous onset of carpel tunnel syndrome in a middle-aged, overweight and possibly menopausal lady with diabetes is unlikely to be work related.
In that same report, in response to the question:
If you consider that Ms Cross’ current conditions were significantly contributed to by her employment with DHS, do you consider that these incidents constitute an aggravation of a pre-existing condition?
Mr Ireland responded:
It is difficult for me to be definitive in answering this question without having personally elucidated a history surrounding the exact circumstances of the onset of the symptoms of both lateral epicondylitis and carpal tunnel syndrome, however based “on the papers”, it is my opinion that the work has not been a significant contributing factor to either of these conditions, and moreover it is my opinion that the lateral epicondylitis is a naturally occurring degenerative condition and that the carpal tunnel syndrome is unlikely to be work related. This opinion is based on:
1the simultaneous onset of bilateral carpal tunnel syndrome
2insulin dependent diabetes mellitus
3weight gain.
Dr Edelman’s report of 15 May 2017 relevantly stated:
It seems to me that her activities of daily living are only curtailed to a very minimal extent. Currently she is not under any treatment.
Except for mild bilateral epicondylitis there was not much else to find on clinical examination.
The diagnosis that is significant here was that of bilateral carpel tunnel with the right far worse than the left.
The prognosis for this should be quite good as it has almost resolved now.
…
As far as I would be concerned your client’s condition is attributable to exactly what she describes of the 18^th February 2016. It would seem to me to be beyond doubt that the work performed has contributed to a significant degree to produce the current symptomology.
…
Your client’s current reported symptoms do not relate to a pre-existing condition.
In a later report prepared by Mr Ireland dated 4 October 2017 (R7) after Dr Edelman had provided his report, Mr Ireland said:
Dr Edelman’s Report dated 15 May 2017
Dr Edelman believed that the repetitious nature of Ms Cross work scanning many sheets of paper per day have been a significant factor in the exacerbation of her symptoms of bilateral carpal tunnel syndrome. He also believes that her diabetes is not related to her carpal tunnel syndrome.
I contest both of these views. Firstly, repetitious movements of the hand do not cause carpal tunnel syndrome. The only way finger movements could significantly exacerbate the symptoms of carpal tunnel syndrome would be work that required sustained gripping such that abnormally hypertonic lumbrical intrinsic muscles were drawn in to the carpal tunnel for prolonged periods. Shuffling paper with the digits only partially flexed cannot have any significant mechanical influence on carpal tunnel syndrome, and furthermore even when the worker wore bilateral wrist splints to stop wrist motion, the symptoms did not change.
There is ample written evidence, without quoting reference, that diabetes mellitus not only exacerbates the underlying symptoms of carpal tunnel syndrome but on occasions causes carpal tunnel syndrome. The mechanism is hypertrophy of the tenosynovium surrounding the flexor tendons in the carpal tunnel which is a well-documented association seen with not only diabetes mellitus but also commonly seen in post-menopausal women. The increased cross-sectional diameter of the tenosynovium surrounding flexor tendons causes compression of the overlying median nerve in the carpal tunnel which is of a fixed dimension. This thickened tenosynovium is often so obvious that not only does the carpal tunnel need to be decompressed by releasing the carpal ligament but the hypertrophic flexor tenosynovium is often excised to debulk the contents of the carpal tunnel.
At the hearing, Dr Edelman was asked by counsel for the Applicant to respond to Mr Ireland’s comments. His evidence was:
MR BRUNS:And Dr Edelman, do you have some comments on the three paragraphs on page 5 that relate to your report?
DR EDELMAN: Well, I - well, we are going 40 to play disagreement with him now. But, I don’t agree with his opinion of my opinion. But, there is ample evidence that repetitive hand and wrist use is associated with carpal tunnel. Looking at what she was doing, I can’t imagine that she wouldn’t be moving her wrist in any case. It would be pretty good if she can keep the wrist still and still do it, but anyway and then, 45 it was my opinion that I didn’t believe her diabetes had any part to play in it. He is stating that the diabetes had a part to play in it and his logic is that carpal tunnel causes thickening of the tenosynovium, which is the covering of the tendons in the carpal tunnel:
Well documented with diabetes and other things. Increased cross-sectional diameter of that area, et cetera.
Unfortunately, the ultrasound of her right wrist didn’t show that at all. It is just showed thickening, flattening of the median nerve - didn’t show anything to do with the tendons or anything. I am not disputing that people with diabetes can have an increased incidence of carpal tunnel. They may well do. He quotes references. His references are from 2003. The last publication actually came out this year, in the Journal of Clinical Neurology, in 2017, in July, volume 13, if anybody wants to look it up and the ultrasound showed no difference between their controls with carpal tunnel and diabetes and they also said it was totally inconclusive whether diabetes is associated with 15 carpal tunnel as an increased factor.
So, you can see people argue whether - all over the place. But, if you want to go quoting journals, we can all look them up and find the one to substantiate. But, the papers on diabetes causing carpal tunnel, even before - I think the 20 last one was 2003 - most people base it on a study from 1996 and in medicine, everything has changed in the way controls are done, et cetera. But, anyway. I just said that it - with my opinion, I didn’t believe that diabetes in her case had any part to play and besides that, it would be pretty strange if you had diabetes, with the type she’s had and it just decided to 25 produce carpal tunnel, right after she did what she did at work, including her obesity or whatever else he wanted to put forward. But, that is my opinion. I can understand his opinion.
(17 October 2017 Transcript pages 105 to 106)
Dr Mattes in his report dated 20 June 2016 (T8), having outlined the medical and work histories that he took from the Applicant when he saw her on 13 June 2016, made the following comments:
Ms Cross has developed bilateral carpel tunnel syndrome, which on the balance of probabilities is related to her weight gain following conversion to insulin for treatment of type 2 diabetes mellitus.
…
Ms Cross’ employment on the balance of probability will not have contributed to a significant degree to the development of bilateral carpel tunnel syndrome. Bilateral carpel tunnel syndrome is rarely due to occupation, and in particular, keyboard or computer use is not regarded a significant risk factor in medical literature. For carpel tunnel to develop at the same time in both wrists there is usually a systemic health reason.
Simultaneous onset
Both Dr Mattes and Mr Ireland point to the onset of carpel tunnel syndrome symptoms in both wrists at around the same time (in clinical terms) as one of the factors supporting the conclusion that it was caused by an underlying pathology rather than work related. Paragraphs 11 and 13 of the Applicant’s closing submissions are:
11.She did not put on a lot of weight after she went onto insulin and was not doing arts and crafts in 2016. Left hand symptoms did not come on simultaneously but at a later time.
…
13.On cross-examination, the applicant maintained her position. She was not challenged on her evidence that she experienced no weight gain or that she suffered left hand symptoms only after transferring duties to the left hand or on her belief that she never received the letter that Mr Jones claimed he had sent her.

The Respondent responds in its closing submissions as follows:
20.At paragraphs 11 and 13 of the Applicant’s Closing Submissions it was submitted that the Applicant’s evidence was to the effect that left-hand symptoms did not come on simultaneously but at a later time, and only after transferring duties to the left hand. It was also asserted that the Applicant was not challenged on this point under cross examination.
21. In fact, it was expressly put to the Applicant on cross-examination that the first time she experienced symptoms in her left hand was on 28 February 2016, after using a high-pressure hose to clean her deck. The exchange was to the following effect:
“Tell us about that incident? --- I cleaned the back patio down with a high pressure Karcher hose thing, and I paid for it the next day.
What do you mean you paid for it the next day? --- I was very sore the next day.
Very sore where? – My elbows, yes.
Do you recall roughly what date that was? --- I'm not too sure.
… [Applicant was taken to Exhibit R1, T6.6] …
That is an email from Margaret Cross. Is that from your email address? --- Yes.
It is dated 1 March 2016? ---M'mm.
And you say, "I started getting pain in both arms yesterday. Sunday I cleaned down my patio with a high pressure water cleaner, and I think this has stirred them up". Now, you're saying that that's a reference to the problem with your elbows?
--- Yes.
So the use of the high pressure water cleaner didn't cause pain in your wrists?
--- Well it did. I had to use both hands.
So it did cause pain in your wrists? --- Well not so much my wrists. In the - that part of my hand.
Did it cause pain in the part of your hand that is associated with the Carpal Tunnel Syndrome? --- Yes.
I think 2016 was a leap year, so that would have been Sunday - that Sunday would have been 28 February. So that seems to suggest, then, that that's the first instance that's in your left wrist of the Carpal Tunnel Syndrome, quite significantly before you otherwise reported it? --- I'd say so, maybe. Hard to say, I can't remember. It's a long time ago.
But none of the medical reports reflect that you've complained about pain in your left wrist? --- No.
Or left hand at that stage, do they? --- No.
Do you recall telling any of the medical professionals that you'd had pain in your left hand on that occasion? --- No.” [Transcript Page 25]
22.In re-examination the Applicant was taken to that incident, and was asked if it made her hands worse, or whether they stayed the same. She replied: “About the same, with my right hand.” She made no comment about her left hand, and no further question was asked [Transcript p 31]. Her response was consistent with the onset of pain in her left hand that day, only 6 working days after the onset of pain in the right hand.
23. The Applicant’s evidence that the high-pressure hose caused pain in both her hands is entirely consistent with the medical evidence on causation. Dr Jenkins agreed that a high-pressure hose fell within the category of activities associated with higher risk professions in the article ‘Carpal tunnel syndrome – can it be a work-related condition’ [Transcript 16 October 2017 p61].
24. Dr Grant Townsend did not give evidence in the proceedings. However, his notes are comprised in Exhibit R1 (Tribunal Documents). His notes of Tuesday 8 March 2016 [T6.8] state: “2-3 weeks history of numbness in both hands with shooting symptoms into both hands. Worse on right.” This is consistent with the Applicant’s evidence under cross examination that she was already experiencing pain in the left hand as of the end of February.
25. The Applicant’s last evidence to the Tribunal should be accepted. For the purposes of causation, there was no significant delay between the Applicant’s symptomatology in each hand.
As noted at paragraph 17 above, the report (T6.5) lodged by the Applicant on 18 February 2016, the day of the so-called incident, referred to her experiencing symptoms in both hands.
Paragraph 4 of the Applicant’s submissions in reply is in the following terms:
Simultaneous onset
4.As to paragraphs 19 to 25, it is submitted that the word "simultaneous" has been drained of meaning. It is unarguable that there was an offset between symptoms emerging in the right hand and the left hand; the only question is how long the gap was. Mr Ireland is saying that whether the gap was one week or six months is immaterial to his argument. It is submitted that the Tribunal can perceive it otherwise
It is the case that there was a discrepancy in Mr Ireland’s reports of 22 February 2017 (ST5) and 4 October 2017 (R7). In the first report he refers to the onset of symptoms in the left hand being one week after the onset of symptoms on the right hand whereas in the second report he refers to the onset of symptoms being some six months after the onset in the right hand. Mr Ireland was cross-examined on that discrepancy and said that the latter period was what the Applicant told him when he examined her whereas in his first report (on the papers) he had relied on what the reports that he had been provided with said. As noted above, he also said in cross-examination that that the difference between 6 months and one week in the onset of symptoms was “not substantial in a clinical situation” (Transcript of 30 October 2017, page 8 at 25-30) and that the difference did not change his view expressed in his earlier report.
Further, the evidence points to the onset of carpal tunnel syndrome in both hands being simultaneous. The Applicant’s own evidence in paragraph 44 of her witness statement of 3 March 2017 was that in March 2016, that is a matter of weeks after the incident on 18 February 2016, she noticed the same symptoms in her left hand.
Further, the contemporaneous documentation would seem to indicate that even a delay until the beginning of March 2016 in the onset of symptoms in the left hand may not be correct. As noted in paragraphs 17 and 18 above, the report that the Applicant lodged on 18 February 2016 (T6.5) identified symptoms in both hands and the email that the Applicant sent on 1 March 2016 (T6.6) referred to symptoms in both arms on 28 February 2016. Similarly, the history that the Applicant apparently gave to Dr Townsend as set out in Dr Townsend’s report dated 8 March 2016 (T6.7) quoted at paragraph 21 above, was that she had a history of 2-3 weeks of numbness in both hands and that the level of symptoms were 5/10 in the left hand and 7/10 in the right hand. Dr Townsend’s report of 8 March 2016 diagnosed bilateral carpel tunnel syndrome.
The Tribunal does not accept the Applicant’s assertions in paragraph 4 of her submissions in reply that the word “’simultaneous’ has been drained of meaning” because of the difference in Mr Ireland’s reports as to the time between the onset of symptoms in the right hand and the left hand because the Tribunal finds that based on the contemporaneous documentation, the onset of symptoms was, for relevant purposes, simultaneous.
Temporal connection
In her submissions in reply, the Applicant makes the following argument:
Temporal connection
6.The applicant would say that it is beyond doubt that she experienced the onset of symptoms over a two hour period whilst undertaking duties at work on 18 February 2016. The applicant would also concede that a temporal connection is not automatically a causal connection.
7.The level of symptoms and occurrence of aggravations at later points in time from 18 February 2016 are of questionable relevance. After initial treatment, symptoms were decreasing (T6.14). If she was able to scan documents in May 2016 without aggravating her injury, that does not prove that the onset of her injury was not caused by work.
The Respondent’s closing submissions in this regard are as follows:
26.According to the Applicant, her CTS commenced in the workplace. Her symptoms deteriorated until they were constant in both arms, and did not improve when she reduced her hours from 5 to 4 days work per week. Aside from a brief respite at the start of wearing braces, the Applicant’s symptoms appear to have continued to decline until her right hand was operated on, at which time both hands recovered. There is no particular significance to the recovery of her left hand at that time – Dr Mattes observed in his evidence that this was a phenomenon that he had observed previously [Transcript 17 October 2017, page 115].
27. An underlying disease running its course will not be an aggravation within the meaning of s 5B of the Act. There must be a distinction between a condition becoming worse in the workplace and one which is made worse by the workplace.
28. Dr Mattes explained the nature of a temporal relationship in his oral evidence [transcript page 78] in the following terms: “you could be lying on a couch at home, have a heart attack, but lying on the couch was not necessarily a causal factor or risk factor for the heart attack.”
29. On the balance of the medical evidence, it appears that the Applicant’s symptoms were no more or less aggravated by the workplace than they would have been had she been lying at home on a couch [Exhibit R1, page 169-170, T8 – Report of Dr Mattes]. Indeed, the symptoms were aggravated substantially more by her ‘sleeping wrongly’.
30. Mr Ireland’s evidence after reviewing the Applicant was that her symptoms did not abate on days off during the week or on the weekend. In his oral evidence Mr Ireland explained that ‘if the work is relevant, being a substantial contributing factor, or even material contributing factor, then the symptoms would normally stop when you relieve yourself from the provoking activity, and this wasn’t the case when Ms Cross was not working…” [Transcript 30 October 2017, page 3].
31. There is evidence that the Applicant herself reported that her scanning did not aggravate her symptoms. Exhibit R1 contains a Workcover WA Progress Certificate of Capacity signed by the Applicant, dated 10 May 2016 [T6.18, page 127]. That document refers to the task ‘scanning bundles of documents (up to four hours per day), and contains the comment: “Ms Cross reported she can complete this task without any aggravation of her injury.” When that was put to the Applicant she said that it was the doctor’s assessment [Transcript, 30 October 2017 p29].
32. There is no evidence that any causal ‘trigger’ was required to set symptoms of CTS in motion. Under cross examination Mr Ireland said that it was not usual for CTS to be ‘triggered’ one day – rather the symptoms were gradual in onset. He considered the history given by the Applicant to be consistent with such gradual onset [Transcript 30 October 2017, page 10].
33. In any event, there is no evidence to exclude activities outside the workplace from providing a causal trigger, noting in particular that:
a.the Applicant lived alone with (at the time) two reasonably large dogs (which she denied walking either at the onset of symptoms or subsequently, although Dr Mattes reported on page 4 of his report that she walked them once a week for half an hour) and three cats, all of which required the purchase and carrying of food;
b. the Applicant drove a 13 year old manual car; and
c. the Applicant experienced the onset of symptoms in bed at night on at least one occasion [Transcript 16 October 2017, page 29].
For the reasons set out above, the Tribunal does not accept that, as claimed by the Applicant, there was a sudden “onset of symptoms over a two hour period whilst undertaking duties at work on 18 February 2016”.
The Applicant also seemed to rely heavily on the change in the work that the Applicant was required to undertake following her return to Centrelink in November 2015 after her three month trial at Medicare as causing or contributing to the aggravation of the carpel tunnel syndrome. The medical evidence and examination at hearing of the medical witnesses concentrated on her work after November 2015. In paragraphs 5 and 6 of her witness statement of 3 March 2017 the Applicant said:
5.The majority of my working career with the Department of Social Services was with Centrelink. Most recently I was employed as a Compliance Officer.
6.My duties whilst working as a Compliance Officer were sedentary in nature and involved computer work including typing and using a mouse and answering telephone calls.
There is little other evidence of what the Applicant’s work involved prior to her undertaking the trial period at Medicare which had been necessitated by her bilateral common extensor origin syndromes (bilateral epicondylitis) and her severe major depression (see letter from her doctor Dr Stephen Wilson, AJ1 to the witness statement of Alan Jones).
Under s 5B(2) of the Act, in determining whether an ailment or an aggravation was contributed to, to a significant degree, by an employee’s employment, 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.
Dealing with the first two matters, as the medical evidence put on by both parties in effect looked just about solely at the activities and movements of the hands and wrists of the Applicant on and immediately before 18 February 2016, the relevant duration for the purposes of s 5B(2)(b) would only around three months.
It also seems to be accepted that carpel tunnel syndrome is multi factorial and that the Applicant suffered a number of conditions which predisposed her to developing carpel tunnel syndrome.
Dr Mattes identified the Applicant’s weight and her diabetes as factors predisposing the Applicant to development of carpel tunnel syndrome (T8 at 108). While Dr Mattes was cross-examined on whether his statement in his report that the Applicant had gained weight was correct, Dr Mattes’s evidence was that the relevant consideration was the Applicant being overweight, not specifically weight gain. His evidence in cross-examination was:
MR BRUNS:You say that you are - and I guess this is - this encapsulates your opinion, on the balance of probabilities, the bilateral Carpal Tunnel Syndrome is related to her weight gain following conversion to insulin?
DR MATTES: Yes.
MR BRUNS:So your opinion depends quite closely on her weight gain and the prescription of insulin, doesn't it?
DR MATTES: I guess there's - you know, in our combined report that Dr Jenkins and I put in, the - my opinion in terms of the causation of her Carpal Tunnel Syndrome was a mix of factors.
MR BRUNS: Sure.
DR MATTES: Like gender, age, her diabetes, weight gain, and actually that she was - she already was above the ideal body weight.
The joint report submitted by Dr Mattes and Dr Jenkins (A5) contained the following:
(b) The matter upon which they agree in relation to those issues;
Dr Jenkins and Dr Mattes both agree that Ms Cross’ aged of 57 years, being female, having diabetes mellitus and her weight (body mass index of 31.3kg/m² when measured by Dr Jenkins on 22 December 2016), and her 15kg weight gain associated with change in her diabetes treatment to insulin were facts in her development of carpal tunnel syndrome in both wrists.
Dr Jenkins’ report of 22 December 2016 contained the following statement (ST3 at 36):
Ms Cross developed carpel tunnel syndrome, again in the context of very repetitive and prolonged keyboarding [insert balance of paragraph down to ‘as she did” as highlighted]
As noted above, Mr Ireland’s report of 22 February 2017 (ST5) stated:
The more or less simultaneous onset of carpel tunnel syndrome in a middle-aged overweight and possibly menopausal lady with diabetes mellitus is unlikely to be work related.
Dr Edelman in his evidence at the hearing expressed the view that he did not think that the Applicant’s diabetes was linked to her development of carpel tunnel syndrome (transcript of 17 October 2017, page 109 at 45). In cross-examination Dr Edelman did also say the following about diabetes being linked to carpel tunnel syndrome:
DR HENDERSON:     You are not saying it has ruled out diabetes, you are saying the way he gets to diabetes can be ruled out?
DR EDELMAN:          Yes. I mean, the same way you can’t rule in diabetes, you can’t rule it out either, I suppose.
DR HENDERSON:     So, does that explain then, the ambiguous language that you use to rule out 45 diabetes, because - - -?
DR EDELMAN:          No. I still believe that diabetes didn’t have any part to play in this.
Another factor that was raised as potentially contributing to the development of carpel tunnel syndrome, or the aggravation of the syndrome, or at least to the perception of the symptoms, was the Applicant’s depression. In that regard Dr Jenkins’ and Dr Mattes’ evidence (given concurrently) at the hearing was as follows (Transcript of 16 October 2017, page 71):
DR HENDERSON:     Is there any link between depression and the onset of symptoms in carpal tunnel syndrome?
DR MATTES:             Yes, in terms of depressed people sometimes stack on a lot of weight, and if you have severe carpal tunnel syndrome it can make you miserable, certainly; like chronic conditions in work, and workers comp injuries in particular, workers frequently get adjustment disorders with depressed mood and sometimes chronic depression resulting from suffering.
DR HENDERSON:     You're not aware of anything in the literature that suggests there is a link between depression and carpal tunnel syndrome? I ask because I thought I had seen something in the literature.
DR JENKINS:            I think you'd find - I don't know what - you can probably comment better than me - I think the common factor would probably be the tendency to being overweight, but that's just a guess. I haven't looked at that. I would suggest it's probably the overweight common factor.
DR MATTES:             I can answer that question. I'm just going to go to - this is reference 1 - so this is the AMA guide to the evaluation of disease and injury causation in table 9-21. It looks at risk factors - so this is page 290. That looks at biopsychosocial factors, so it looks at - - - 45
…
DR MATTES:             So this helps summarise the evidence for us when we're looking at causation.
DR JENKINS:   They're risk factors. They're not causation.
DR MATTES:             No - well risk factors.
DR JENKINS:            It would be a logical error to assume that that was (indistinct) causation.
DR MATTES:             That's true.
DR HENDERSON:     If I may, I'm going to come back and ask you about causation and risk factors in a minute, so bearing that in mind - - -
DR MATTES:             So basically - - -
DR JENKINS:   She was not depressed, was she?
DR HENDERSON:     Yes, she was suffering severe depression when she saw you.
DR MATTES:             Yes, she had depression.
DR HENDERSON:     Was that not part of the history that you took?---Let me have a look.
DR MATTES:             On the table it shows there's very strong evidence for psychosocial factors and the reporting of carpal tunnel symptoms, and they showed that there was a higher risk of carpal tunnel syndrome with depression, poor job satisfaction, poor supervisor appreciation, feeling physical or mental exhaustion and increased family problems, and then it refers to another - yes, so there is a link between the diagnosis of carpal tunnel syndrome and depression?
In cross-examination Dr Edelman’s evidence on the link between depression and carpel tunnel syndrome was as follows (Transcript of 17 October 2017, page 112 at 35 onwards):
DR HENDERSON:     What about any link between depression and carpal tunnel syndrome?
DR EDELMAN:          You’re stretching it now. Where is the - I beg your pardon? I mean - I don’t know. I haven’t read the literature on depression and carpal tunnel.
DR HENDERSON:    So, you are not aware of any connection between depression and carpal tunnel syndrome?
DR EDELMAN:          If you’re stating that, there must be a link.
DR HENDERSON:     We heard some evidence from Dr Mattes yesterday that suggested that there had been some links between depression and carpal tunnel syndrome. That is not something that is on your radar?
DR EDELMAN:          No. I’m sure if you look at it, depression is linked with every single disease or condition you can possibly think of.
DR HENDERSON:     Why do you come to that conclusion?
DR EDELMAN:          Because, you will find it is. In what I do for a living, if the person is stressed or under depressive symptoms, everything gets worse in any case.

Dr Edelman did in answers that followed that exchange make it clear that he really had not considered the issue of a connection between depression and carpel tunnel syndrome so could not comment.
The evidence established that the Applicant had engaged in other activities which involved wrist or hand movement. The Applicant’s evidence at the hearing was that she had prior to the carpel tunnel syndrome undertaken housework, she had two large dogs and had worked in her garden. The Applicant also gave evidence that she had on Sunday 28 February 2016 cleaned her patio using a high pressure “Karcher” cleaner and that that had caused both of her hands to be sore (Transcript 16 October 2017, page 25). It was this incident that had given rise to the email sent by the Applicant on 1 March 2016 (T6.6) wherein she advised her direct supervisor that she had suffered pain in both arms as a result of the use of the high pressure cleaner.
The Respondent points out that both Dr Edelman and Dr Jenkins relied significantly on what they were told by the Applicant to conclude that her carpel tunnel syndrome was work related. In cross-examination Dr Jenkins’ evidence was:
DR HENDERSON:     Were you asked to determine what had caused the carpal tunnel syndrome?
DR JENKINS:            Not specifically, no. I don't think that's in the questions. I was asked what I attributed the reported symptoms to and, as I replied, attribution is not the same as cause. I replied to that, question 7, to the work that she undertook because the history I was given was that she developed symptoms while doing repetitive prolonged manual handling office work.
DR HENDERSON:     So would it be fair to say that you started with a result and then made inquiries as to whether or not that result was accurate, as distinct from starting with an inquiry and following that inquiry to a conclusion?
DR JENKINS:   No, that is absolutely not fair to say. I disagree with that.
DR HENDERSON:     Well how would you characterise it?
DR JENKINS:            I always take people at face value. I don't read reports that I'm given until I've taken a history and examined the patient myself. I never form conclusions before I've seen the patient myself. I'm aware of some of my colleagues read all the reports before they see the patient. I think that's a very dangerous practice and to do such a thing would be, in my view, unethical. I'm always on very on guard against confirmation bias because that's the hazard that we live with as independent medical examiners.
DR HENDERSON:     So, I think you said a moment ago that with regards to your comment about prolonged keyboarding and scanning:
I didn't go into detail about work. She told me a great deal of keyboard and scanning.
Is that correct?
DR JENKINS:   That's correct.
DR HENDERSON:     So what she said to you was she was doing a great deal of keyboarding and scanning?
DR JENKINS:            What's written in my report is what she would have told me and, again, I stress I don't change histories based on what I think they said. I say what they told me and I wasn't tasked with forensically examining and doing a task analysis of her work, so if she told me she did seven and a half hours a day of that sort of work, then that's what I would report. If I was asked to go into detail, I would be capable of doing that, but I wasn't.
DR HENDERSON:     So if you were told that she was scanning documents for about five hours a day, with about four breaks in the middle, so scanning for about an hour and stopping for a break, which included entering 10 digit codes on a keypad about this big, would that change your opinion?
DR JENKINS:   Where's the keypad? Is it vertical, horizontal, on a plinth?
DR HENDERSON:     Well, let me show you.
DR JENKINS:   What sort of buttons has it got?
DR HENDERSON:     Could I ask that he be shown - - -
DR JENKINS:            I'm interested to see it but it wouldn't alter my opinion because the patient told me that she was doing a lot of repetitive work and that's when she developed symptoms, which, to me, is a plausible trigger for carpal tunnel syndrome, if not cause. Yes, so is that a touchpad? The middle bit's a touchpad?
The following exchanges are from the cross-examination of Dr Edelman (Transcript 17 October 2017, page 114 at 11 onwards);
DR HENDERSON:     Is there any circumstance in which a patient would say to you, “I do repetitive things at work and I have carpal tunnel syndrome”, in which you would not conclude that the work caused the carpal tunnel syndrome?
DR EDLEMAN:          If they were coming with a letter from the GP saying, “This is a workers’ comp claim”, I absolutely know. So, if you are looking at the other way around, I would never ask them. I mean, this whole system - don’t get me started - this whole system is biased. Because, she is coming as a workers’ comp case. I am not going to start looking at, you know, the other things. People don’t - if somebody comes with a carpal tunnel syndrome and asking me, you know, what can they do for it - the GP - I then don’t go into what she does in the workplace or this, that and the other and whatever.
and (Transcript 17 October 2017, page 108):
DR HENDERSON:     No, that is right?
DR EDLEMAN:          I’m not going to go - I’m not on an investigation - a detective - to go into the workplace and measure, as you said, the height of the photocopier and that sort of thing. No, I didn’t talk to the employer.
DR HENDERSON:     So, for clarity, your conclusions, they all come through the medium of the information you received from the client?
DR EDLEMAN:          Absolutely correct.
The above excerpts are illustrative of what must be a common issue for medical practitioners asked to draw conclusions as to causation reliant, by necessity, on what the patient tells them. This is even more fraught when the patient may not have particularly good recall. In the present case the Applicant concedes that because of her depression she has difficulty remembering things. Her evidence in this regard was (Transcript 16 October 2017, page 24):
DR HENDERSON:     Did you take up reading?
MS CROSS:I can't read due to depression. I used to be an avid reader. If I sit down with a book now, I could read 15 pages, and if you asked me what I read I wouldn't be able to tell you. I've just got no concentration.
DR HENDERSON:     How long has that been the case?
MS CROSS:              Since 2008. I now get audio books in the library.
There were also inconsistencies in the Applicant’s evidence at the hearing indicating a lack of ability to clearly recall. The Respondent’s closing submissions identify these at paragraph 44 as follows:
The Applicant’s inability to concentrate and recall recent history was apparent in her evidence to the Tribunal. For example, her oral evidence was that she was handling the mail morning and afternoon, starting in November 2015, and going until about February or March 2016. When the inconsistency with her written evidence that “after a few weeks” she was no longer able to perform the mail handling role she accepted that she could not have been handling the mail for more than a month, and that her handling of the mail had stopped well before February [Transcript 16 October 2017 p23]. Similarly, the Applicant initially gave evidence that she was scanning continuously during the workday. Then she said she was there for a couple of hours at a time before taking a break. Then she said that she had four breaks in a day, from which she admitted that she must take a break around every hour [Transcript 16 October 2017 page 19].
The Tribunal accepts that the Applicant tried her best to recall events and sequences of events and onset of symptoms but considers that some of the evidence of the Applicant, particularly the details surrounding the onset of her symptoms and the details of the work that she was undertaking around February 2016, must be treated with some reserve.
Meaning of “contributed to, to a significant degree”
The key issue with establishing a compensable “disease” under the Act is that the employee must prove that the employment contributed, to a significant degree, to the disease.
Previously, the Act defined “disease” to mean an ailment or aggravation that was “contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation”. The significant degree threshold was inserted on 13 April 2007 in response to Parliament’s view that way in which the courts had interpreted the phrase “material degree” under the previous definition of “disease” had had the effect of significantly reducing the extent to which employment must have contributed to a disease for it to be compensable.
Relevantly, the Explanatory Memorandum to the Safety, Rehabilitation And Compensation And Other Legislation Amendment Bill 2006 states:
The initial legislative intent was to establish a test requiring a claimant to prove that his or her employment was ‘more than a mere contributing factor in the contraction of the disease’ (see the Second Reading speech to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 – subsequently renamed as the SRC Act). The phrase ‘contributed to in a material degree’ was intended to ensure that the Commonwealth was not liable to pay compensation for diseases which have little, if any, connection with employment
However, the courts have read down the expression ‘in a material degree’ to emphasise the causal connection between the employment and the condition complained of rather than the extent of the contribution. The purpose of the proposed amendment is to assist in reinstating the intended policy behind the Commonwealth workers’ compensation scheme by limiting access to compensation claims for diseases to which work has only made a very minor contribution.
The Full Court of the Federal Court in Dunstan v Comcare [2011] FCAFC 108 noted that the intention of changing the threshold was “to impose a more stringent test of the causal relationship between employment and disease”. The Court said that the test was intended to be broader than the “daily duties, or specific aspects of the workplace environment” and was intended simply to refer to “employment as a factor that operated actively to bring about the condition” (Dunstan at [40]).
“Significant degree” is defined in s 5B(3) of the Act to mean “a degree that is substantially more than material”.
In Crouch v Comcare [2013] AATA 608, Deputy President Handley stated at [40]:
A “significant degree” means “substantially more than material” (s 5B(3)) in a context where “material” in itself means something of substance (see above Sahu-Khan).
In Comcare v Power [2015] FCA 1502, Judge Katzmann relevantly stated that:
[78]A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.
…
[83] In Comcare v Canute (2005) 148 FCR 232 ; 89 ALD 258 ; [2005] FCAFC 262 at [68] (Canute), however, French and Stone JJ took issue with the application of this approach to the definition of “disease” in the SRC Act. Although their Honours accepted that a “but for” test was inappropriate, after referring to the Minister’s second reading speech on the introduction of the Bill which became the SRC Act, they said:
the changes brought about by the enactment of the SRC Act were intended to require that the contribution be “more than a mere contributing factor” … Content must be given to the word “material” contained in the definition of “disease” in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded.
…
[85] In Comcare v Sahu-Khan (2007) 156 FCR 536 ; [2007] FCA 15 at [14] (Sahu-Khan) Finn J observed that the legislative history of the definition of “disease” makes it plain that the term “material” in the phrase “in a material degree” in the SRC Act was not used to denote a contribution which was only greater than de miminis. Thus, it appears that, despite the common law approach to “material contribution”, the intention of the SRC Act was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted ( at [15] ) that the Shorter Oxford English Dictionary defined “materially” to include “substantially” and “considerably”.
…
[93] There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial…
[94] Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention… While the chapeau to the subsection states that those matters “may“ (not “shall“) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that “may“ means “shall“…
The Tribunal also notes the following comments made by Member Taglieri in Reardon and Comcare [2015] AATA 360:
[35]This has been settled in law and it requires the contribution by employment to be substantially more than “material”.
[36] In Su v Comcare the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn:
“When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded“[4]. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.”
[37]I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.
[Emphasis added]
Having regard to the jurisprudence above, the Tribunal is not satisfied that the evidence establishes that the Applicant’s work contributed to, to a significant degree, the Applicant’s carpel tunnel syndrome or an aggravation of the Applicant’s carpel tunnel syndrome. This is particularly the case if one considers that what must be affected to a significant degree is an underlying pathology which causes the symptoms. The medical evidence established, and it was not disputed, that from February 2016 the Applicant suffered from bilateral carpel tunnel syndrome. The Tribunal finds, however, that circumstance relied on by the Applicant as indicating a connection between the Applicant’s carpel tunnel syndrome and her work, namely the sudden onset of symptoms over a two hour period on 18 February 2016 (paragraph 1(b) of the Applicant’s closing submissions and paragraph 6 of the Applicants submissions in reply) did not occur for the reasons set out above.
The Tribunal accepts the evidence of the simultaneous (in clinical terms) onset of symptoms in both wrists as indicative of the major cause of the Applicant’s carpel tunnel being the development of an underlying pathology associated with other medical conditions suffered by the Applicant. At best the evidence of Dr Edelman and Dr Jenkins, the two main doctors relied on by the Applicant, was to the effect that the Applicant’s work activities at or around 18 February 2016 could have contributed to the onset of carpel tunnel syndrome symptoms. That does not, in the Tribunal’s view, establish that the Applicant’s work contributed to, to a significant degree, the Applicant’s carpel tunnel syndrome or an aggravation of the Applicant’s carpel tunnel syndrome or to any underlying pathology giving rise to the symptoms of carpel tunnel syndrome.
CONCLUSIONS
The Tribunal concludes that:
(a)the Applicant did not suffer an injury for the purposes of s 5A(1)(b) of the Act on 18 February 2016 or any other identifiable date;
(b)the Applicant’s employment did not contribute to, to a significant degree, the Applicant’s carpel tunnel syndrome or an aggravation of the Applicant’s carpel tunnel syndrome; and
(c)the Applicant therefore did not suffer a disease for the purposes of s 5A(1)(a) of the Act.
DECISION
For the above reasons, the decision under review is affirmed.

I certify that the preceding 139 (one hundred and thirty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle.

.....[sgd]...............................................................
Administrative Assistant - Legal
Dated: 22 January 2018

Dates of hearing: 16 & 17 October 2017 and 30 October 2017

Date final submissions received: 7 December 2017

Counsel for the Applicant: Mr Bruns

Representative for the Applicant: Ms Dempster

Solicitors for the Applicant: JDK Legal

Counsel for the Respondent: Dr Henderson

Representative for the Respondent: Mr Vas

Solicitors for the Respondent: Comcare

Dates of hearing:	16 & 17 October 2017 and 30 October 2017
Date final submissions received:	7 December 2017
Counsel for the Applicant:	Mr Bruns
Representative for the Applicant:	Ms Dempster
Solicitors for the Applicant:	JDK Legal
Counsel for the Respondent:	Dr Henderson
Representative for the Respondent:	Mr Vas
Solicitors for the Respondent:	Comcare