Re Cross and Comcare

Case [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

  1. 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.

  2. The application was made to the Administrative Appeals Tribunal on 26 August 2016 (T1).

    BACKGROUND

  3. 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).

  4. The Applicant remained employed by DHS until she retired on 14 November 2016.

  5. 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…

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AGLC
Re Cross and Comcare [2018] AATA 52
Case
[2018] AATA 52
Decision Date

CaseChat Overview and Summary

This matter concerned an application to the Administrative Appeals Tribunal by an applicant who claimed compensation from Comcare for bilateral carpal tunnel syndrome. The applicant had been employed by the Australian Public Service since 1982 and by the Department of Human Services from 1989 until her retirement in 2016. She reported experiencing symptoms in her right hand in February 2016, followed by similar symptoms in her left hand in March 2016, and subsequently lodged a workers' compensation claim for both wrists.

The central legal issues before the Tribunal were whether the applicant had suffered an "injury" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, whether her employment had contributed to that injury to a significant degree. The definition of "injury" under section 5A of the Act includes a disease suffered by an employee, or a physical or mental injury arising out of, or in the course of, employment, or an aggravation of such an injury that arose out of, or in the course of, employment.

The Tribunal considered the medical evidence, including joint reports and oral testimony from various medical professionals, which confirmed that the applicant suffered from bilateral carpal tunnel syndrome. However, the medical opinions diverged on the question of causation, specifically the link between the applicant's employment and her condition. The Tribunal reasoned that carpal tunnel syndrome is a condition characterised by median nerve compression at the wrist, which can be caused by various factors, including repetitive or forceful wrist movements. Despite the applicant's symptoms and the medical consensus that she had the condition, the Tribunal concluded that the applicant had not suffered an injury for the purposes of the Act on any identifiable date, nor had her employment contributed to her carpal tunnel syndrome or its aggravation to a significant degree. Consequently, the Tribunal found that she had not suffered a "disease" as defined by the Act.

For the reasons outlined, the Tribunal affirmed the decision under review, meaning Comcare was not liable to pay compensation for the applicant's bilateral carpal tunnel syndrome.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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;

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

The Tribunal would express the issues for determination to be as described by the Respondent above.CONSIDERATIONThe 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.