Rigg and Comcare (Compensation)

[2015] AATA 781

Rigg and Comcare (Compensation) [2015] AATA 781 (8 October 2015)

Division	General Division
File Number(s)	2014/4950, 2014/5542
Re	Joanne Rigg
APPLICANT
And	COMCARE
RESPONDENT

DECISION

Tribunal	Dr Ion Alexander, Member
Date	8 October 2015
Place	Sydney

The reviewable decision dated 1 August 2014 and subject of application 2014/4950 is affirmed.

The reviewable decision dated 14 October 2014 and subject of application 2014/5542 is set aside and remitted to the Respondent for reassessment in accordance with the reasons of the Tribunal.

A decision on the matter of costs in relation to application 2014/5542  is reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to make submissions. If they do not, the Tribunal will make an order pursuant to s 67(8) of the SRC Act.

.......................................................................

Dr Ion Alexander, Member

CATCHWORDS

COMPENSATION – carpal tunnel syndrome – cervical intervertebral disc displacement   – applicant claims injuries a result of workload – applicant claims aggravation of existing undiagnosed condition – whether injury related to employment –  whether respondent liable to compensate applicant – decision under review in respect of carpal tunnel syndrome affirmed – decision under review in respect of cervical invertebral disc displacement set aside and remitted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 14, 67

CASES

Australian Postal Corporation v Bessey [2001] FCA 266

Commonwealth of Australia v Beattie (1981) 35 ALR 369

Secondary Materials

REASONS FOR DECISION

Dr Ion Alexander, Member

8 October 2015

INTRODUCTION

1. Ms Rigg commenced work as Customer Service Officer (CSO) with the Department of Human Services (DHS) in 2001.

2. On 13 March 2014 Ms Rigg first claimed compensation for “carpal tunnel syndrome” (CTS). In a reviewable decision dated 1 August 2014 a review officer affirmed an earlier decision which determined that Comcare, the Respondent, is not liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988(Cth) ( the SRC Act). (application 2014/4950.)

3. At the hearing Counsel for Ms Rigg submitted she accepts that the decision subject of application 2014/4950 should be affirmed.

4. On the 4 August 2014 she lodged a second compensation claim for “cervical intervertebral disc displacement (C5/6, C4/5).” In a reviewable decision dated 14 October 2014 a review officer affirmed an earlier decision which determined that Comcare was not liable to pay compensation pursuant to s14 of the SRC Act. (application 2014/5542.)

5. In these proceedings Ms Rigg seeks review of the reviewable decision of 14 October 2014 and seeks compensation for injury caused by her employment.

   ISSUES

6. Ms Rigg submits that in November/December 2013 and February 2014 she experienced symptoms in her right hand and arm while performing her duties as a Customer Service Officer (CSO). She attributes the onset of these symptoms to a significant increase in her workload which began in November 2013 and claims that her employment has contributed to an aggravation of an underlying degenerative cervical spine condition that was previously undiagnosed.

7. Compensation is payable pursuant to the provisions of s 14 (1) of the SRC Act which reads as follows:

   (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

8. The  definition of “injury” in s 5A of the SRC Act  is as follows:

   5A Definition of injury 

   (1)       In this Act:

   injury means:

   (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;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment

9. There is no dispute that Ms Rigg suffers from a degenerative disease of her cervical spine (cervical spondylosis) that was confirmed with an MRI scan performed on 24 May 2014. The relevant findings of the MRI scan are summarised as follows:

   Conclusion: The most likely site of significant nerve root impingement is at the right foramen at C5/6 compressing the right C6 nerve. There is also substantial foraminal narrowing at the level above bilaterally but slightly less severe than the C5/6 level.

10. For the purposes of the SRC Act the definition of “disease” in section 5B as follows:

    5B Definition of  disease

    (1)       In this Act:

    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.

11. Therefore,  the Tribunal must decide:

    (a)Whether Ms Rigg suffers from a “disease” within the meaning of the s 5B of the SRC Act, and if so;

    (b)Whether the “disease” has resulted in incapacity for work or impairment. 

12. Section 4 of the SRC Act defines an ailment as “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

13. There is no dispute that Ms Rigg suffers from cervical spondylosis and that this condition is an ailment for the purposes of the SRC Act.

14. Accordingly, the definitive issues are as follows:

    (a)has Ms Rigg’s employment contributed, to significant degree, to her cervical spondylosis; or

    (b)has Ms Rigg  suffered an aggravation of her cervical spondylosis, that was contributed to, to a significant  degree, by her employment?

    EVIDENCE

    Ms Rigg’s Evidence

15. Ms Rigg provided the Tribunal with a written statement dated the 1 July 2015 which is summarised as follows:

    ·On 9 January 2001 she commenced work with DHS Wagga as a customer service officer (CSO). Her main duty was processing new claims which involved data entry and management using a keyboard, computer mouse and dual monitors.

    ·At the age of 9 years Ms Rigg had an operation on the right eye which left her with almost no vision in that eye.

    ·On 4 November 2013 Ms Rigg was assigned to an Integrated Work Management (IWM) team so that the number of claims she was required to process increased from approximately 10 to 12 per day to 20 to 36 per day.

    ·On or about 15 November 2013 Ms Rigg began to experience “persistent numbness, tingling pain, pins and needles” in her right hand and arm but continued to work.

    ·On 23 December 2013 Ms Rigg went on recreational leave for four weeks during which her symptoms “gradually subsided.”

    ·On 20 January 2014 Ms Rigg returned to work in the IWM team. Within approximately one week the symptoms in her right hand and arm recurred and she also had pain in her neck.

    ·On 6 February 2014 her symptoms had increased so that she reported them to her team leader and attended her GP, Dr Sedrak, who diagnosed carpal tunnel syndrome.

    ·On 7 February 2014 Ms Rigg was transferred out of the IWT team and assigned different duties.

    ·On the 19 February 2014, in accordance with advice from an Occupational Therapist, Ms Rigg began using a mouse in her left hand. After one week she began to have symptoms in her left hand and arm.

    ·On 3 April 2014 Ms Rigg’s symptoms had become so “unbearable” that her GP certified her unfit for work until 14 April 2014.

    ·On the 14 April 2014 Ms Rigg returned to work on a gradual Return to work (RTW) plan with restricted hours and duties.

    ·On the 5 June 2014 Dr Ow-Yang, Neurosurgeon, diagnosed cervical spine pathology which Ms Rigg described as “a disc protrusion and nerve compression in my neck.”

    ·On the 23 June 2014 Ms Rigg returned to full time hours with restricted duties

    ·On 25 June 2014 a “CT guided right C6 peri-radicular injection” was performed with some relief of symptoms for about one month.

    ·Current symptoms are described as “pins and needles in my right and left hands, numbness in my right and left hands, intermittent sharp pains in my right and left arms, aching in my right and left arms and pain on the right side of my neck, which increases every time I turn my head.”

16. At the hearing Ms Rigg described  the symptoms she experienced in November/December 2013 as “tingling, numbness, pain up the arm into my neck and, again, with the left hand but it was nowhere near as the right hand…[it] was also in my hand as well and it was in all fingers …same in all fingers.”   She said that at home at night when she finished work she got a “bit of relief” but when she was on four weeks holiday “I had nothing. It all went. Had no pain whatsoever.”  Despite her symptoms she explained that she did not reduce the number of claims she was processing and “just kept going.”

17. In response to questions from Counsel for the Respondent as to why she didn’t mention her symptoms when she attended her usual general practice on two occasions in December 2013 Ms Rigg said that she thought “it will go away” and that she would only “have the symptoms at work and then I’d get a bit of relief at night-time.” She was unable to recall the reasons for her attendances.

18. When asked why she didn’t report her symptoms to her supervisor she said that the supervisor was “not approachable” and that when she eventually did report the symptoms her supervisor “tried to discourage me to even do the compensation.”

19. Ms Rigg explained that when she returned to work on the 20 January 2014 her symptoms recurred but she did not report it until 8 February 2014 because, initially, she thought they may go away but the symptoms did not go away and actually increased. She said that the symptoms “were the same but more severe, up my arm, my fingers, and like when I went to even touch like the keyboard to start keying, like I’d instantly get pins and needles and numbness.” She said that when she started using a mouse in her left hand she experienced symptoms in the left hand which she did not have before and that these symptoms were only in the hand up to the wrist.

20. In response to a question from the Tribunal Ms Rigg said she currently has constant numbness, tingling and intermittent pain radiating up to her shoulder blades. She described the constant numbness and tingling in the right arm as covering the whole hand up to above the wrist and extending into the forearm.  With regards to the left hand she described it as “it’s all good”.

    Medical Evidence Ms Rigg’s GP – Dr Sedrak

21. Relevant sequential entries in Dr Sedrak’s notes are summarised as follows:

    ·6 September – BSL is high, poor control.

    ·5 December 2013 – sinusitis, diabetes mellitus. (Dr Thatcher.)

    ·17 December 2013 – review diabetes.

    ·6 February 2014 – Rt arm, pins and needles, pain Rt Hand, tenderness lat epicondyle, +ve phalen test…Right Carpal Tunnel Syndrome.  

    ·13 February 2014 – ultrasound right forearm or elbow.

    ·12 March 2014 – pain in Rt wrist, not improving by physio, pains and needles radiated to the Rt elbow +ve phalen test ….referral Dr Masson.

    ·20 March 2014 – pain is not improving.

    ·1 April 2014 – Pain recurred upon returning to work, saw another physio who thinks its thoracic outlet syndrome.

    ·2 April 2014 – pain is getting worse, did not get any sleep last night, stressed ++.

    ·10 April 2014 – new program with case manager…foot operated mouse, voice activated computer, light duties in another office.  

    ·11 April 2014 – influenza immunisation.

    ·14 April 2014 – having a nerve study, mentoring in her old office till new mouse is available.

    ·28 April 2014 – gradual increase in hours, foot operated mouse and voice operated keyboard, nerve study early June.

    ·30 April 2014 – new medical certificate.

    ·9 May 2014 – referral letter.

    ·22 May 2014 – reason for contact: “neck pain with referred arm”...“nerve conduction was –ve for CTS, still gets P&N in the Rt arm”…MRI requested.

    ·26 May 2014 – results of MRI discussed.

    ·6 June 2014 – script.

    ·10 June 2014 – pneumococcus immunisation.

    ·23 June 2014 – C6 radiculopathy, turning head during work, facet joint inj. In 2/7 by Dr Ow Yang.

22. In a letter dated 9 April 2014 Dr Sedrak notes “Specific diagnosis, Carpal Tunnel Syndrome with Radial Tunnel Syndrome. Pain numbness, Right >Left hand radiates to the right elbow. Diagnostic tests for Carpal Tunnel Syndrome were +ve (phalen’s and Tinnel’s tests) the right wrist.”

23. In a WorkCover NSW certificate of capacity Dr Sedrak notes that Ms Rigg has capacity for some type of employment from 28 July 2014 for 7.5 hours per day 5 days per week  as per Return To Work Plan No 6.

    Dr Masson – Hand and Wrist Surgeon

24. In a letter to Dr Sedrak dated 11 April 2014 Dr Masson notes the following:

    In November 2013, she started to develop numbness and tingling in her right hand with a pain that radiated up to her elbow. She put up with the pain and then went on four weeks holiday in December and the symptoms settled.  She returned to work and her symptoms started up again.  The mouse was changed to her left hand and she started to develop similar symptoms on the left…

    Ms Rigg said that it hurt to flex her wrist more than 25 degrees. However, when I subsequently performed the Phalen’s manoeuvre to flex the wrist fully Mrs Rigg demonstrated no evidence of any pain.

    The Phalen’s manoeuvre was positive after 10 seconds with numbness in the index, middle and ring fingers of the right hand. There was a reduction in lateral rotation and lateral flexion of the cervical spine with a Tinel’s sign over the brachial plexus on the right.

    Clinically, Mrs Rigg appears to have right carpal tunnel syndrome with some milder symptoms on the left.

25. In a letter to Comcare dated 15 April 2014 Dr Masson states the following:

    I believe the specific diagnosis of the condition for which Mrs Rigg suffers is bilateral carpal tunnel syndrome. …Mrs Rigg describes numbness and tingling in her hands which radiates up to her elbow.

    The Phalen’s manoeuvre, which is a provocative test for carpal tunnel syndrome, was positive in both hands.

    Carpal tunnel syndrome is a common condition in the general population. It is more common in diabetics and certainly in those with an elevated BMI. Mrs Rigg has both of these risk factors. Therefore, I think it is highly likely Mrs Rigg’s carpal tunnel syndrome is due to a combination of her underlying conditions of diabetes and elevated body mass index…

    On the balance of probabilities, I think that Mrs Rigg’s condition is not related to her employment with the DHS…..

    Mrs Riggs gives a temporal association between her symptoms and increased work with keying and using a mouse. However, there is no good scientific evidence to show that computer or mouse work causes or aggravates carpal tunnel syndrome.

    Allied Health

26. In response to a written request from Comcare dated 24 March 2014 Ms Brown, Occupational Therapist notes the following:

    symptoms include constant pain in R arm/hand & constant numbness in R.  Less severe but similar symptoms in L arm/hand…Gradual onset over 2-3 weeks before seeking treatment. Attributed to increased workload…

27. In a letter to Dr Sedrak 25 March 2014  Ms Brown notes the following:

    As assessment continues, Jo’s symptoms increasingly appear to be of proximal origin…there is irritation of the radial and medial nerves, and in the hands her pain appears within distribution of the dorsal superficial radial nerve. More broadly, the C6 dermatome appears particularly affected. I believe her issue is more likely a neurovascular compression in the thoracic outlet region. I believe work environment and posture could be a contributing factor, with very rounded shoulders and neck forward.  

28. In a letter to Dr Masson dated 10 April 2014 Mr Turnbull, Physiotherapist, notes the following:

    On examination of Mrs Riggs cervical spine movement was limited and also appeared to reproduce her right sided arm symptoms. In particular right sided cervical spine rotation and combined extension/ right rotation and palpation at C5/6/7 on the right was sensitive and reproduced right sided forearm numbness and pain.

    Dr Frawley, Orthopaedic Surgeon

29. In a letter to Dr Sedrak dated 19 May 2014 Dr Frawley notes as follows;

    Thank you for referring Joanne regarding her right arm symptoms...[she] describes pain down her arm, which is quite severe at times. It disturbs her sleep at night. Furthermore, she has some numbness in the arm and hand as well…

    Examination reveals a very overweight woman who looks uncomfortable. Her right wrist is a little stiff, but all other joints in the right arm demonstrate a normal range of movement. There is no muscle wasting in the hand. Joanne claims to have altered light touch sensation all over the volar and dorsal aspects of the hand and forearm…

    Her nerve conduction study done today reveals normal peripheral nerve conduction…

    It seems to me that most of her symptoms are arising in her neck…I have referred her for a neck Xray.

    Dr Ow-Yang, Neurosurgeon

30. In a letter dated 6 June 2014 Dr Ow-Yang notes the following:

    The initial symptoms began in November 2013…where she was put in a special team to process claims more rapidly and her workload increased from processing 10 claims a day up to 30 claims per day. When she was doing this work, she developed pain and paraesthesia in the right hand radiating up to the right forearm as well as neck pain, particularly when she turned her neck to the right. She describes having two computer screens and having turn her head from side to side…she took leave in December and the symptoms improved...in January returned to same level of work and symptoms recurred. She then reported the injury on the 6^th February 2014.

    …despite physiotherapy and a two week period of rest as well as a decrease in workload to light duties, she continues to be symptomatic with pain and paraesthesia radiating from hands to the forearm and the lateral arm as well as neck pain…

    On clinical examination I cannot detect any significant neurological deficit.

    An MRI of the cervical spine shows significant pathology at C5/6 level where there is a right sided foraminal disc bulge causing severe foraminal stenosis and compression of the right C6 nerve…

    Joanne describes symptoms typical of a cervical radiculopathy however she does describe paraesthesia in all of her fingers which is not typical of a C6 nerve alone. That said however, the likely diagnosis is one of a right C6 brachalgia, secondary to a formainal right C5/6 disc protrusion

    …her symptoms are not consistent with a carpal tunnel syndrome due to the fact that she has pain in the right forearm as well as neck pain on turning her head to the right…it is possible that in the process of performing her work from turning her head from side to side between two screens, she has developed an acute C5.6 foraminal disc protrusion but it is also possible that foraminal stenosis  was present prior to the onset of symptoms and has been aggravated by the process of her work…

    She has agreed to try stronger medication in the form of Lyrica at 75 mg twice a day which I have given her a script. She has also agreed to a diagnostic and therapeutic C6 periradicular injection under CT guidance which gives a 50% chance of improving the pain but the symptom may be temporary…

    There may be a component of chronic muscular pain involving the right forearm.

1. In a letter to Dr Sedrak dated 1 August 2014 Dr Ow –Yang notes the following:

   Joanne presents for follow up. She continues to have significant right brachialgia with pain radiating from neck to the lateral arm and forearm as well as paraesthesia in her fingers. She had partial improvement in pain after the use of Lyrica at 75 mg s twice a day as well as a CT guided right C6 periradicuar injection…Joanne has made an attempt at returning to very low levels of work where she is processing only three claims a day but her symptoms continue to be significant and distressing…I have offered Joanne the option of surgical intervention to try and manage the pain.

   Dr Bodel, Orthopaedic Surgeon

2. In his report dated 19 December 2014 Dr Bodel  notes a  reported history that, following a change in work practices,  Ms Rigg experienced a “gradual  onset of initially hand pain and numbness, the right worse than the left in November 2013. Later this spread up to the forearms to the shoulders and the neck” with the symptoms being completely relieved during a period of 4 weeks leave during December/January 2013 and recurring when she returned to work in  January 2013. 

3. Dr Bodel notes that current complaints include continuing pain in the neck, aggravation of the pain by head down posture or overhead use of the arms as well as pain, numbness and tingling, radiating to all five digits of both hands.

4. On examination Dr Bodel notes  the following:

   …tenderness in the trapezius muscles at the base of the neck on the right hand side with a reduced range of flexion, extension and rotation in all directions… there is evidence of non-verifiable complaints in the upper limbs particularly involving the C6 distribution. There is no definite evidence of median or ulnar nerve pathology that I can detect…

5. Dr Bodel notes that  there were “no x-rays  or other tests available for review” and comments that question of diagnosis is difficult but concludes  as follows:

   Clinically this lady may have cervical disc pathology causing nerve root irritation involving the C6 nerve root. She may also have the carpal tunnel syndrome as there are clinical signs suggesting that this is a possibility with a positive Tinel’s sign over the radial nerve at the wrist but I have not seen the nerve conduction studies which would be helpful in confirming the diagnosis.   

6. Dr Bodel comments that he is satisfied that “…the nature and conditions of this lady’s work could cause aggravation of the degenerative process in the cervical spine leading to nerve root irritability in the right upper limb and also aggravation of her constitutional carpal tunnel syndrome.”

7. In his oral evidence at the hearing Dr Bodel addressed relevant  issues as follows:

   ·Ms Rigg’s description of a “glove-like” distribution of symptoms in the right hand is not typical of any particular nerve distribution and is “a classic non-radicular type distribution.”

   ·Numbness and tingling involving the whole hand or surfaces is “not helping you to make a diagnosis because it’s confusing.”

   ·Pain radiating from the wrist to the shoulder is “not the typical way in which pain--pathological processes usually shoot in the other direction; from above down.”

   ·On considering the available evidence carpal tunnel syndrome was “the least likely of the available differential diagnoses for this lady’s complaints.”

   ·Non-verifiable C6 radicular complaints means that there are no identifiable neurological abnormalities that is, “no findings of essentially loss in the distribution that fits the C6 nerve root...” 

   ·Confirmation that he had found no evidence of neurological abnormality in the distribution of the right C6, median or ulnar nerve.

   ·An explanation in respect some apparent uncertainty in his written report as “this is a difficult question…there is pathology in the cervical disc but as to whether that is symptomatic pathological process causing referred pain to the right arm, I’m uncertain.”

   ·A person with the type of pathology in Ms Rigg’s cervical spine may experience neck pain “but it’s not an absolute” and may have symptoms “that are specifically just in the arm.”

   ·The abnormalities found in Ms Rigg’s MRI scan “have not been caused by work at all. They are a constitutional variant…but the nature of her work, particularly an increase in the work…could be a type of activity that could induce symptoms in an abnormal neck.”

   Nerve Conduction Studies

8. In a report dated 19 May 2014 Dr Ring , neurologist, concludes as follows:

   Normal study. There is no electrophysiologic evidence of a median or ulnar neuropathy on either side.  

9. In  a report dated 5 February 2015 Dr Jude concludes as follows:

   There is no evidence of Carpal Tunnel Syndrome on either side. This does not exclude transient median nerve compression without sustained impairment of nerve function. Bilateral mild ulnar neuropathies at each cubital tunnel are identified.

10. In a letter dated 18 February 2015 Dr Jude compares his study with Dr Ring’s earlier study and states that “…there is no evidence of carpal tunnel syndrome in either study, but the ulnar neuropathies at the elbow are new…” 

    Dr Khurana, Brain and Spine Surgeon

11. In  a report dated 27 February 2015 Dr Khurana notes the onset  of symptoms as follows:

    Ms Rigg said that in November 2013 she started a period of ‘tiger work’ and a few days later, started experiencing numbness and tingling and pain particularly along the right hand and fingers and up the right arm, some burning dysaesthesia and some sharp pains, she said pain was shooting up her arm, her hand felt tight and swollen but did not look swollen. She had some neck stiffness and some restricted movement of her neck, and sometime later similar symptoms started in the left arm…

    She said she took four weeks leave, the symptoms eased up’ totally’, she said she ‘had nothing’ and specified ‘not a pain’ and then returned to work in January 2014 and the symptoms recurred again, this time right arm greater than left arm and also involving the neck, and she reported the symptoms around this time.    

12. Current status is described as follows:

    She still has ongoing arm symptoms, right more than left…she get shooting pains involving the right arm and shoulder region…her sleep is disturbed by pain particularly in the right arm…

    Symptoms worsened during typing, repetitive movements of her head and neck…increased arm pain with walking…numbness and tingling in all fingers particularly on the right side in digits one and two more than digits three and four …experiences a burning sensation more in the right arm than left.

13. Physical examination revealed the following:

    …decreased range of motion of her head and neck in all directions, to about 70% of normal….pain and tenderness on palpation around the shoulders…diffuse tenderness in the posterior neck…foraminal compression during lateral flexion was negative for any radiculopathy but she said she had neck pain and trapezius pain during such manoeuvres.

14. Dr Khurana concluded as follows:

    Ms Rigg is a 46 year old lady who reports work related symptomatology and clinically her symptoms, examination findings are consistent with a right C6 radiculopathy…it appears she has some soft tissue arthritic or inflammatory condition affecting joints such as the shoulders and the wrist and distal forearm region on the right, more than the left…  The C6 radiculopathy is related to the structural foraminal stenosis noted to be severe in the MRI reports and from a combination of disc and osteophyte. This is a pre-existing condition, likely present for several years with gradual progression, it is likely related to a combination of natural ageing…. may be related to a combination of factors including high BMI, diabetes…

15. Dr Khurana commented that “from a causation perspective, only the right wrist and distal forearm symptoms/condition is in my opinion, related to her work” and that “excessive use of a mouse and keyboard may have caused her to experience forearm and wrist discomfort on the right. I do not believe it caused any other condition.” He  also stated the following:

    I do believe the condition is significantly contributed to by her employment, particularly based on the temporal relationship between her increased work duties during what she referred to as ‘tiger periods’, which in my opinion caused a symptomatic exacerbation in the cervical spine and on the balance of probabilities, in the right wrist and distal forearm region more than the left. The exacerbation of the symptoms was reduced during a period of absence from work, as indicated clearly with direct quotation from Ms Rigg, and she appears to be managing ‘okay with the reduced number of report she is now doing. The effects of the condition appear to be continuing although manageable.

16. In a supplementary report dated 20 August 2015 after having reviewed his original report and additional documents provided by the Respondent Dr Khurana states:

    From an aetiological perspective, the clinical right C6 radiculopathy is related to pre-existent multi-level constitutional cervical spondylosis and not the work or work environment. There may have been a temporary association between her symptomology and the workload by way of her exacerbation of symptoms, but not pathological aggravation or causation. This exacerbation is largely based on the verbal communication of the workload association made by Ms Rigg to me when I originally assessed her…

    I am in agreement with Dr McGill’s view regarding lack of aetiological evidence to support a relationship between Ms Rigg’s work and the cervical radiculopathy.

17. In his oral evidence at the hearing Dr Khurana  addressed relevant  issues as follows:

    ·Stated that his acceptance of an association with Ms Rigg’s reported periods of excess work and the onset or exacerbation of her symptoms as work based on “her communication” of the history.

    ·Agreed that in his supplementary report he had expressed an opinion that there may have been a temporary association between her symptoms and the workload by “by way of exacerbation of symptoms but not pathological aggravation or causation.”

    ·Stated that in his opinion the normal neurophysiological studies ruled out carpal tunnel syndrome.

    ·Confirmed that he had been concerned that Ms Rigg “might have some other sort of inflammatory condition involving the wrist and the forearm because she had tenderness.”

    ·Confirmed that when he examined Ms Rigg he found no neurological deficit except for “some decreased sensation in the right upper extremity medially and laterally but it was not confined to a dermatome.”

    ·Commented that Ms Rigg had symptoms of neck pain and some arm pain which could be viewed as cervical radicular symptoms but she did not have classical clinical C6 radiculopathy.

    ·Commented that Ms Rigg’s description of symptoms radiating up to her neck and in a glove-like distribution “does not fit cervical radiculopathy related to C5 or C6” and raised the possibility of diabetic neuropathy. 

    ·Commented that Ms Rigg’s description to the Tribunal of symptoms in her left hand in a glove-like distribution arising shorty after using a mouse in her left hand is not “related to the cervical pathology” and may be related to some “local muscle or joint issues.”

    Clinical Associate Professor McGill, Rheumatologist

18. In his report dated 20 April 2015 Professor McGill notes that within two weeks of increased work duties in November 2013 Ms Rigg noted “pins and needles and a feeling of numbness in the right hand” and that during four weeks of annual leave her symptoms resolved only to recur within one week of resuming work.  In February 2014 the symptoms deteriorated in that they experienced symptoms in both hands, right worse than left, as well as radiating “up the right upper limb to the neck.”

19. Professor McGill details Ms Rigg’s current symptoms as follows:

    ·pins and needles involving the entire right with the dorsal and volar aspects of all fingers being involved, intermittent sharp pain in the right forearm, frequent dull ache in the entire right upper limb, and ache or pain in the right scapular region.

    ·numbness over the dorsum of the right hand and fingers although no numbness on the palmer aspect.

    ·similar although milder symptoms in the left upper limb, in he left hand predominantly over the dorsal aspect with the hands feeling swollen and tight on some days.

    ·discomfort and pain on the right side of her neck.

    ·right upper limb symptoms are worse with walking, resting with arms at her side sometimes is associated with tingling in the right upper limb.

    ·no change in right upper limb symptoms with neck rotation.

20. On examination Professor McGill notes the following:

    ·Rotation of the cervical spine was restricted to 75% in each direction with rotation to the right causing pain.

    ·When acting out eye and neck movements when using dual screens “she tended not to move her left eye significantly and she rotated her head through an arc of 30 degrees.”

    ·Light touch sensation was reported accurately throughout both upper limbs but subjectively she felt there was a minor difference when comparing left hand to the right hand. The difference was not restricted to any dermatome.

    ·When assessing using the Phalen’s test for median nerve irritation “she reported that upon wrist flexion she immediately experienced tingling in the entirety of the right hand involving all fingers. The immediacy of the sensation and the distribution were both not suggestive of median nerve irritation/dysfunction.

    ·Power in all the left upper limb muscle groups was excellent.  There was mild weakness of power in all right upper limb muscle groups which was not explicable on the basis of radiculopathy, peripheral nerve dysfunction or pain and the “pattern was in keeping with suboptimal effort.”

21. In his summary Professor McGill notes the following:

    In November 2013 she developed paraesthesia and numbness in the right hand. Carpal tunnel syndrome initially appeared to be a likely diagnosis but her symptoms evolved to include pain in most of the right upper limb and nerve conduction studies did not provide any support to the possibility of carpal tunnel syndrome whereas imaging studies of her cervical spine provided substantial support to the conclusion that her symptoms derived from cervical nerve root irritation.  The distribution of her symptoms was not and remains not typical of C6 distribution although I agree with Dr Ow-Yang that irritation of the right C6 nerve root is the probable explanation for her symptoms.

    Her symptoms commenced soon after she changed her work duties with an increase in the number claims processed.  Her work duties were subsequently modified and reduced but her symptoms have been ongoing.

    I think the management that she received was appropriate and that surgical intervention recommended by Dr Ow-Yang is reasonable.

    Cervical spondylosis is common including in her age group. There is no evidence from the published literature of which I am aware, that would support the suggestion that work duties she performed could have made any difference to the development or progression of the degenerative changes in her cervical spine  which have been responsible for her symptoms. I think the temporal relationship between the changes of job and when her symptoms occurred was coincidental. If her work duties made any difference to her symptoms then the effect would have been limited to the time of performing the work duties and for a day or two thereafter.

    I enclose an extract from Upton Date (literature review current through March 2015, topic last updated August 2014). In the section on pathogenesis it will be noted that there was no suggestion that work of the type she has performed could influence the process.

    I think her cervical spondylosis and the nerve root irritation which has occurred as a result of that process are entirely constitutional and unrelated to her work.

    The review by Up-to-date noted that in one of the largest epidemiologic studies of cervical radiculopathy, the mean age at diagnosis was 47.9 years (range 13 to 91Years). Thus the age which she experienced her symptoms is typical of the disorder.

22. In his oral evidence at the hearing Professor McGill  addressed relevant  issues as follows:

    ·Agreed that Ms Rigg suffers from cervical spondylosis with demonstrated C4/5 and C5/6 pathology. 

    ·Confirmed his opinion that Ms Rigg’s work duties did not contribute in any way to the cervical spondylosis on the basis of “my knowledge of cervical spondylosis and study of that area over a good number of years which includes literature...”

    ·Did not agree with the proposition that a person having vision in one eye would usually need to turn their head between two screens.

    ·Was not aware of any study in the literature “that suggested that people who rotate their heads get more cervical spondylosis.”

    ·Expressed the opinion that “it’s  very common for people when they  develop symptoms related to cervical spondylosis, which usually comes on with no change  in their activities, to nevertheless search to think of something that they might have done differently that might be an explanation… so it’s very common for people to present with symptoms for the first time with cervical spondylosis, a disease that is clearly gradually progressive, in terms of the pathological changes and imaging abnormalities” and added that  “.the development of cervical spondylosis, including the imaging abnormalities that are present in this case , take years to develop.”

    ·In response to a question from the Tribunal as to the possibility of an early but temporary emergence of symptoms as a result the increased work load stated that “I think it’s unlikely that work would cause the symptoms to develop…if you were having an exacerbation and you were at the same time working hard it could make it more unpleasant for you. I don’t think the work activities would be likely to cause the exacerbation.”

    ·In respect of a described a glove- like pattern of symptoms he said it “doesn’t fit for carpal tunnel syndrome…it rings alarm bells, in terms of invasive therapy for her neck, because it doesn’t fit for a dermatomal distribution….a non-organic distribution.”

    Other Evidence

23. The claim form dated 13 March 2014 notes diagnosed condition as “Rt wrist pain radiates to the Rt elbow, soft tissue injury?? Carpal tunnel syndrome [sic]” and date when first noticed you were ill as 5 February 2014.

24. The team leader statement dated 13 March 2014 notes that on 20 January 2014 Ms Rigg returned from recreational leave and “was allocated the standard 10 claims and was also rotated through the Carer Adjustment new claim processing, week about”. It also notes that on 6 February 2014 Ms Rigg advised via email that she was experiencing “‘pins and needles, numbing and a dull ache in her right and left hand, wrist and arm’. Jo was immediately placed back into the role of processing Carer Adjustment Payment new claims, which involved less keying and a reduced volume of work, at a slower pace.” 

25. In a letter dated 27 June 2014 Ms Rigg disagrees with the statement of the team leader.

26. The claim dated 4 August 2014 notes parts of body injured as “right and left hand/arms radiating up into my neck.”

    DHS Ergonomic Assessment Reports (DHS report)

    Ms Brown, Occupational Therapist

27. In her 7 March 2014 report Ms Brown notes the following:

    ·Ms Rigg advised that she had noticed gradual onset of right wrist and forearm pain since approximately December 2013…Ms Rigg advised she had four weeks off work on annual leave in January2014; however her symptoms did not resolve and as such reported her injury to her treating GP on 11 February 2014.

    ·Ms Rigg advised her symptoms are constant “‘numb, tingling and sore’ sensation on the palmar and dorsal surface of right thumb and index finger …symptoms can radiate up and down her right forearm to her elbow.”

    ·Ms Rigg was observed to utilise a Trackman Marble Mouse located to her left in an appropriate position. Ms Rigg advised she was advised to utilise this type of mouse from her treating Physiotherapist and had only some initial symptoms in her left hand in the week following its use.

    ·Injury Treatment observed that the two monitors were placed correctly within the midline of Ms Rigg’s body which eliminated excessive neck turning when working from either screen.

    Ms Kirpichnikov, Occupational Therapist

1. In her 10 November 2014 report Ms Kirpchnikov notes the following:

   ·Current hours of work as 37 hours per week.

   ·Ms Rigg explained that “she started to notice pins and needles in both upper limbs during November 2013. Ms Rigg advised that she did not report these symptoms as they resolved within 4 weeks 2013. Ms Rigg stated that the symptoms returned and therefore reported it to work during February 2014, Ms Rigg advised Injury Treatment that she believes her injuries (specifically the C5/6 disc protrusion and possible right carpal tunnel syndrome) are linked to the repetitive nature of the role as a service officer.”

   ·Ms  Rigg reported current symptoms  as “a shooting pain through her right upper limb…she has recently noticed pain within her right shoulder blade …numbness and pain within her left forearm and hand…pain within the right side of her neck….sensations of tightness and swelling within her right hand.”    

   ·Injury Treatment advised placement of monitors into a portrait position to minimise neck rotation and further education to enable correct setup and use of the available Dragon Software.

   Mr Gosbell, Physiotherapist

2. In his 3 August 2015 report Mr Gosbell notes the following:

   ·Current hours of work as 37 hours per week.

   ·Ms Rigg explained that she started to notice pins and needles in both upper limbs during November 2013.

   ·Ms Rigg reported current symptoms as “constant, shooting, burning type pain in the right side of her neck, shoulder (&scapular are) and extending down her right arm to her hand…a feeling of mild paraesthesia in both of her hands, particularly on the right side.”  

   ·Ms Rigg reported that “she is able to complete her allocated quota of 4 new claims per day, with additional work including occasional quolling and some further work on ongoing (not new) claims.”

   Return to Work Plans (RTWP)

3. A RTWP No 1

   ·15/4/14 – 24/4/14 – 2 hours per day, 2 days per week, no use of keyboard or mouse.

   RTWP No 2

   ·29/ 4/14 – 2/5/14 – 4 hours per day, 4 days per week, no use of keyboard, no use of mouse, no writing > 10 mins to learn to use foot mouse, to receive instruction on how to use voice activated computer program Dragon. (Stage 1).  

   ·5/5/14 – 9/5/14 – 5 hours per day, 5 days per week, no use of keyboard, no use of mouse, no writing > 10 mins, to operate foot mouse in conjunction with voice activated computer program Dragon in conjunction with using the phone as required. (Stage 2.)

   ·12/ 5/14 -16/5/14 – 5.5 hours per day, 5 days per week, otherwise no change. (Stage 3.)

   ·19/5/2014 – 30/5/2014 – 6.5 hours per day, 5 days per week, otherwise no change. (Stage 4.)

   ·2/6/2014 – 13/6/2014 – 7.5 hours per day, 5 days per week, otherwise no change. (Stage 5.)

   RTWP No 6

   ·29 /7/2014 – 26 /8/2014 – 7.5 hours per day, 5 days per week, limit use of keyboard, limit use of hand mouse (left hand), no writing >10 mins, continue to learn Interim Farm Household Allowance (IFHA) processing, to use phone as required.

   CONSIDERATION

4. There is no dispute that Ms Rigg suffers from a degenerative cervical spine condition, namely, ‘cervical spondylosis’, and that this condition is an ailment within the meaning of the SRC Act.

5. Ms Rigg submits that in November 2013 and February 2014 her employment contributed to an aggravation of her previously undiagnosed cervical spondylosis by causing symptoms, such as pain and paraesthesia, and subsequently resulted in an incapacity for work.

6. In particular she submits that a temporary increase in workload and the type of work combined with the fact that she only has normal vision in her left eye contributed to the onset of her symptoms.

7. The Respondent submits that, although there is a temporal relationship with Ms Rigg’s work, the work did not contribute to the onset of her symptoms, or if it did, the contribution was not to a significant degree.

8. In her written statement of 1 July 2015 Ms Rigg claims that in November 2013 two weeks after she stated to work in the IWM team, which involved a significant increase in the volume of claims being processed, she began to experience “persistent numbness, tingling, pain, pins, and needles” in her right hand, and arm and pain in her neck.

9. Notwithstanding the implied extent and severity of the symptoms as described in her statement and in her oral evidence Ms Rigg continued to work with the increased volume of claims, did not inform her team leader and did not mention the symptoms during two visits to her usual general practice in December 2013. When she went on leave on 23 December 2013 her symptoms, according to her oral evidence immediately resolved.

10. In my view, it is not clear whether her symptoms, at that time, were related to her cervical spondylosis or some other condition. There is no documented corroboration of her symptoms and the description of the symptoms is not entirely consistent with other documents, for example, there is no mention of “neck pain” in Dr Sedrak’s clinical records until 22 May 2014.

11. In her statement Ms Rigg claims that within one week of returning to work she began to experience exactly the same symptoms that she had experienced in November/December 2013. On the 6 February 2014 she notified her team leader and went to see Dr Sedrak. Dr Sedrak notes a history of pain in the right hand and pins and needles in the right arm and makes a provisional diagnosis of carpal tunnel syndrome but makes no reference to any neck pain.

12. In her statement Ms Rigg states that on 19 February 2014, at the suggestion of Ms Brown, Occupational Therapist, she began to operate the computer mouse with her left hand and after one week she started to experience the same symptoms in her left hand and arm.

13. I note that in the DHS report of 7 March 2014 the assessor notes that Ms Rigg was observed to utilise a Trackman Marble mouse that had been recommended by her physiotherapist and ”had only felt some initial symptoms in her left hand in the week following its use”.

14. Despite treatment with physiotherapy, painkillers and some changes in duties the symptoms in the right arm not only persisted but “were unbearable” so that on 3 April 2014 Dr Sedrak certified her as unfit for work for about 10 days.

15. Ms  Rigg states that on 14 April 2014  she returned to work on a gradual RTWP  on restricted duties and reduced hours of two  hours per day three days per week and on 23 June 2014 returned to fulltime hours but on restricted duties.

16. On 6 June 2014 Dr Ow-Yang notes that Ms Rigg said that she developed “pain and paraesthesia in the right hand radiating up to the right forearm as well  as neck pain” in November 2013. He refers to the pathology shown on the MRI scan, comments that he is unable to detect any significant neurological deficit and concludes that the likely diagnosis is “right C6 brachalgia, secondary to a foraminal right C5/6 disc protrusion.”  He makes no mention of any symptoms in respect of the left upper limb.

17. Dr Ow-Yang states that ‘It is possible that in the process of performing her work from turning her head side to side between two screens, she has developed an acute right C5/6 foraminal disc protrusion but it is also possible that the foraminal stenosis was present prior to the onset of symptoms and has been aggravated by the process of her work.”

18. The RTWP No 6 dated 28 July 2014, which was approved by Dr Sedrak, notes that Ms Rigg is fit for suitable restricted duties from 29 July 2014 with a goal to return to her “pre-injury role” working 37.5 hours per week by 7 October 2014.

19. The history of injury noted by Dr Bodel in his report of 19 December 2014 is, in my view, incomplete and not entirely consistent with contemporaneous documents.  He was clearly uncertain about the cause of Ms Rigg’s symptoms which was not surprising as he did not have the benefit of the results of the nerve conduction studies. However, in his oral evidence he confirmed that Ms Rigg’s right arm symptoms were consistent with non-verifiable C6 radiculopathy and expressed the opinion that cervical spine abnormalities found in the MRI scan were not caused by work but that “work, particularly an increase in the work…could be a type of activity that could induce symptoms in an abnormal neck.”

20. In his report of 27 February 2015 Dr Khurana notes a description of the onset of symptoms as reported by Ms Rigg which, in my view, suggests some retrospective construction. He concludes that Ms Rigg “reports work-related symptomatology and clinically her symptoms, examination findings and imaging are consistent with a right C6 radiculopathy” but that only her right distal wrist and forearm symptoms are related to her work. He speculates about her various other unexplained symptoms.

21. In his supplementary report of 20 August 2015 Dr Khurana states that the clinical right C6 radiculopathy is related to “pre-existent multi-level constitutional cervical spondylosis and not the work or work environment” and that there may have been a temporary exacerbation of symptoms associated with her workload which did not amount to “pathological aggravation or causation.”

22. Dr Khurana emphasises that the “exacerbation is largely based on the verbal communication of the workload association made by Ms Rigg” at the time of the original assessment.

23. In his oral evidence Dr Khurana again emphasises that the association of symptoms with work is based on Ms Rigg’s self- report and confirms his opinion that she had symptoms which could be viewed as cervical radicular symptoms but did not have a classical clinical C6 radiculopathy.   

24. In his report of 20 April 2015 Professor McGill provides a detailed account of Ms Rigg’s history of complaint and current symptoms as well as a fairly comprehensive physical examination.  He reviews all the relevant documents including the reports of the two neurophysiological studies.

25. Professor McGill concludes that although the distribution of Ms Rigg’s “was and remains not typical of the C6 distribution”, irritation of the right C6 nerve root is the probable explanation for her symptoms. He states that he is not aware of any evidence in the published literature that would support the suggestion that Ms Rigg’s work duties could have made any difference to the “development or progression of the degenerative changes in her cervical spine which has been responsible for her symptoms.” He goes on to say that, in his opinion, the temporal relationship between the change of job and when her symptoms occurred was coincidental and, furthermore, if her work duties made any difference to her symptoms the “the effect would have been limited to the time of performing the work duties and for a day or two thereafter.”

26. In his oral evidence Professor McGill confirmed his fairly strong opinion that Ms Rigg’s work duties did not contribute to her underlying cervical spondylosis or to any aggravation of the condition including her right arm symptoms.

    CONCLUSION

27. The evaluation of the evidence in this matter, in my view, has been complicated by a number of factors including the early confusion as to the correct diagnosis, the inconsistencies in Ms Rigg’s self-report of symptoms to the various healthcare practitioners and to the Tribunal, the somewhat atypical nature of Ms Rigg’s symptoms when compared with the identified pathology and her relatively early return to full-time work albeit with a modified workplace and a change in duties.

28. Nevertheless I have reached the following conclusions.

29. I am satisfied that Ms Rigg suffers from a degenerative cervical spine condition, namely, cervical spondylosis, and that the weight of the medical evidence establishes that this condition was likely to have been present, albeit asymptomatic, for several years and is a constitutional condition unrelated to Ms Rigg’s employment.

30. I am satisfied that there is no evidence that the relatively brief period of increased workload described by Ms Rigg caused an aggravation of  her underlying cervical spondylosis in the form of pathological change.

31. There is no dispute that Ms Rigg suffered symptoms including pain in the course of her work. The cause of her symptoms In November/December 2013 is, in my view, unclear and may have been associated with her cervical spondylosis. Notwithstanding Ms Rigg’s submissions these symptoms appear to have been relatively trivial in that she did not report them, they did not cause any incapacity for work and resolved fairly quickly when she went on leave.

32. In February 2014 in the course of her work, Ms Rigg suffered symptoms in the right upper limb which were severe enough to require medical intervention and cause some incapacity for work.

33. I am satisfied that the medical evidence suggests that, consistent with the identified pathology at the C5/6 foramen, her symptoms in the right upper limb at that time can be attributed to an irritation of the C6 spinal nerve.

34. This raises the question whether, for the purposes of the SRC Act, symptoms brought on by work activity can be considered an aggravation of a pre-existing condition without evidence of pathological change.

35. In consideration of this question I am guided by the following authorities:

36. In Commonwealth of Australia v Beattie (1981) 35 ALR 369 Evatt and Sheppard JJ considered the meaning of the word “aggravation” in the context of the SRC Act, where a claimant had pre-existing non-compensable injury. Their honours stated with Kelly J agreeing as follows at 378:

    there can be cases where there will be an exacerbation, and thus in our view an aggravation, of a previously existing injury by activity which increases or precipitates pain.

    It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.

37. In Australian Postal Corporation  v Bessey [2001] FCA 266 Gyles J considered the issue of ‘aggravation’ of an underlying degenerative spondylosis condition and stated the following:

    [4] This ground of appeal raises, once again, the issue of compensation for the effect of work upon an underlying condition -…

    [6] It has been well settled by a series of decisions ... (including reference to Asioty v Canberra Abattoir Pty Ltd) ... that if an underlying condition is aggravated, in the sense of been made worse, then any incapacity which results is compensable. On the other hand, if the aggravation is temporary, so that after a time it ceases to have any effect and leaves the underlying condition no worse, then there is no relevant continuing injury causing incapacity.

    [7] In the present case, there is no relevant dispute that spondylosis is an ailment, and that when riding a motor bike for mail delivery the spondylosis causes the respondent to experience symptoms (principally pain) which make such work unsuitable so incapacitating the respondent.

    [8] This would require compensation for the period when the symptoms were operative, but would not, without more, constitute continuing injury. To constitute continuing injury it would be necessary to go further and find that the work had adversely affected the underlying condition in some way which continued to have an effect. The mere fact that incapacity resulting from the spondylosis caused pain whilst working does not mean that the symptoms resulted from a work-related injury (including aggravation) but rather resulted from the underlying condition.

    ...

38. I am satisfied that the facts of this case are such that that the symptoms suffered by Ms Rigg in her right upper limb in February 2014, while at work, may be considered an aggravation of her cervical spondylosis.

39. Therefore, the next question is whether Ms Rigg’s work contributed to her symptoms and if so whether the contribution was to a significant degree in accordance with s 5B of the SRC Act.

40. There is clearly a temporal relationship with Ms Rigg’s right upper limb symptoms and her work. The medical evidence apart from the opinion of Professor McGill, in my view, supports the proposition that in February 2014 her work significantly contributed to a temporary irritation of the C6 spinal nerve with an increase in the severity of the symptoms which resulted in some incapacity for work.

41. Accordingly, on balance, I am satisfied that in February 2014 Ms Rigg’s work contributed to an increase in  symptoms in the right upper limb and that the contribution was to a significant degree so that there was an aggravation of her pre-existing cervical spondylosis in accordance with s 5B of the SRC Act

42. However, I am satisfied that the aggravation of the cervical spondylosis was temporary and ceased to have an effect when Dr Sedrak certified Ms Rigg as being able to  return to full-time hours on 28 July 2014.

43. I am satisfied that Ms Rigg’s pre-existing cervical spondylosis was not adversely affected by the employment related temporary aggravation and that her persisting symptoms can be attributed to the pre-existing condition alone.

44. Accordingly I find that pursuant to s 14 of the SRC Act Comcare is liable to pay compensation for any work incapacity between 6 February 2014 and 28 July 2014.

    DECISION

45. The reviewable decision dated 1 August 2014 and subject of application 2014/4950 is affirmed.

46. The reviewable decision dated 14 October 2014 and subject of application 2014/5542 is set aside and remitted to the Respondent for reassessment in accordance with the reasons of the Tribunal as set out above.

47. A decision on the matter of costs in relation to application 2014/5542 is reserved. The parties have 14 days from the date of this decision to advise the Tribunal if they wish to make submissions. If they do not, the Tribunal will make an order pursuant to s 67(8) of the SRC Act.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member.

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

Associate

Dated 8 October 2015

Date(s) of hearing	7 and 8 September 2015
Counsel for the Applicant	Mr A Coombes
Solicitors for the Applicant	SLATER & GORDON LAWYERS
Counsel for the Respondent	Ms R Henderson
Solicitors for the Respondent	Lehmann Snell Lawyers