Russell and Comcare (Compensation)

Russell and Comcare (Compensation) [2019] AATA 4363 (25 October 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/0879
GENERAL DIVISION  )
Re: Michelle Russell
Applicant

And: Comcare
Respondent
TRIBUNAL:    Member K. Parker
DATE OF CORRIGENDUM:            13 November 2019
PLACE:          Melbourne
CORRIGENDUM TO DECISION
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of this decision dated 25 October 2019 as follows:

In paragraph [67], replacing “Comcare” with “the Applicant”; and

In paragraph [151], replacing “17 April 2016” with “17 August 2016”.

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

Division:GENERAL DIVISION
File Number: 2017/0879
Re:Michelle Russell
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:25 October 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution, decides that Comcare is liable to pay compensation to Ms Russell under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury of “aggravation of right shoulder subacromial bursitis” taken to have occurred on 16 August 2016.
......[sgd]..................................................................
Member K. Parker
Catchwords
WORKERS’ COMPENSATION – shoulder bursitis – disease – aggravation of ailment – causation – repetitive and intense activities using computer keyboard and mouse – consideration of articles reviewing relevant epidemiological studies – consideration of conflicting medical evidence – employment contributed to, to a significant degree, the aggravation of the disease – decision set aside and substituted – issue of costs reserved
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)
Secondary Materials
Activity-related soft tissue disorders, Factsheet issued by The Workers’ Advisers Office of British Columbia
AMA Guides to the Evaluation of Disease and Injury Causation
NOISH, National Institute of Occupational Health & Safety; Musculoskeletal Disorders and Workplace Factors: A critical review of the epidemiological evidence for work-related musculoskeletal disorders of the neck, upper extremity, and low back. DHHS (NOISH) Publication 1997 - Chapter: Shoulder Musculoskeletal Disorders Evidence of Work Relatedness.
Dr CH Linklater and Dr K Walker-Bone [Associate Professor & Honorary Consultant in Occupational Rheumatology], Southampton General Hospital, United Kingdom, Shoulder Disorders and Occupation published in Best Pract Clin Rheumatol, 2015 June: 29(3); 405-423.
Stephen Morrissey (Human Factors-Ergonomic Consultant Portland, Tigard, OR, USA), Understanding Shoulder Injury, Advances in Physical Ergonomics and Human Factors, 2018.
REASONS FOR DECISION
Member K. Parker
25 October 2019

This application is about whether Comcare is liable to pay compensation to the Applicant, Ms Michelle Russell, in relation to a claimed injury to her right shoulder pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Ms Russell contended that impairment arising from this injury lasted for a limited period from 16 August 2016 to 4 January 2017.[1]
[1] Refer Transcript 29 January 2019 at P-2, lines 30 to 37.
At the time of injury, Ms Russell was employed by the Department of Human Services (Department). Her duties involved the intensive and repetitive use of a computer mouse and both the alpha and numerical sections of a keyboard intermittently to: prepare reports for the approval of applications received from pharmacies based on applications submitted by them (usual Pharmacy work); and also to input information provided over the phone by doctors seeking approval to issue scripts for medicines covered by the Pharmaceutical Benefits Scheme (PBS) (PBS authorities work).
The main issue in this application was whether Ms Russell’s claimed shoulder injury was sufficiently connected with her employment as provided for under the relevant provisions of the Act. To assist the Tribunal in making such an assessment, a number of medical witnesses were called by the parties during the hearing. Ms Russell also gave evidence about the nature of her duties and her symptomatology and treatment in relation to the claimed injury. Photos were produced of Ms Russell’s workstation and the computer keyboard and mouse she used. Review articles were also produced drawing conclusions from various epidemiological studies carried out in relation to issues of causation in respect of shoulder injuries, including bursitis.
Comcare lodged a set of documents with the Tribunal pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) which the Tribunal will refer to as T-Documents.
The Tribunal has taken into account the evidence, T-Documents and submissions made by the parties. For the reasons set out below, the Tribunal sets aside the decision under review and in substitution, decides that Comcare is liable to pay compensation to Ms Russell under s 14 of the Act in respect of the injury of “aggravation of right shoulder subacromial bursitis” taken to have occurred on 16 August 2016.
BACKGROUND
Ms Russell is 54 years old. She is single and lives in a suburb of Melbourne with her mother aged in her mid-80’s. Ms Russell has described her mother as “active and independent”. Ms Russell has two small terrier dogs. She walks them each day for about half an hour.
Essentially, Ms Russell has worked in the same job for about 36 years based at an office in the Melbourne central business district. She is a Service Officer (APS3 or SO(3) level) and was employed on a full-time ongoing basis, working Monday to Friday from 7.30am to 4pm with a 30-minute lunch break and two 15-minute tea breaks each day. Her specific job title at the time of the claimed injury was “Pharmacy Program Officer”. Her duties in this role involved the general administration of files (mostly electronic) and using a keyboard, computer and telephone. Ms Russell is right-hand dominant.
On 22 September 2016, Ms Russell lodged a claim for compensation in respect of claimed “bursitis” that affected her “right arm & shoulder”.[2] At that time, Ms Russell’s evidence was that she was doing intensive keyboard work with a rollerball mouse all day. On the claim form completed by Ms Russell, she stated that when she was injured she was doing the following tasks: “Telephone/processing duties” and “Repetitive keyboard strokes” and that she first noticed her “symptoms/injury” on 8 August 2016. When asked on the form to state how the injury happened and how she was injured, Ms Russell stated, “repetitive activities”. She also stated on the form that she expected to be absent from work due to the injury for “longer than 3 months”. She indicated that she had not ever claimed compensation for a similar injury or condition or experienced similar symptoms (work-related or otherwise). Ms Russell stated that she first sought medical treatment for the claimed injury from Dr Karyn Alexander on 16 August 2016.
[2] Refer T-Documents T3/6-8.
On 27 September 2016, Ms Russell’s team leader at the time, Ms Charito Cosio,[3] completed a workers’ compensation employer form in respect of this claim. The form confirmed a number of details, including that Ms Russell had returned to work since her injury.[4] A rehabilitation report (initial assessment) was prepared by ipar on 14 October 2016 which stated that Ms Russell had been medically certified as fit for suitable employment for four hours per day with no keyboard activities.[5]
[3] Specifically, Ms Cosio held the position of PBS Team Leader (TL5), Team 8/Medicare Provider Services, Health Services Delivery Division, Department of Human Services – refer T-Documents T6.1/34.
[4] See answer to Q.19 at T-Documents T3/9.
[5] Refer T-Documents T4/12.
On 27 October 2016, Ms Cosio made a statement which was provided to Comcare in response to its request to the Department (under s 71 of the Act) for information about Ms Russell’s claim.[6] In this statement, Ms Cosio described Ms Russell’s duties:[7]
[6] Refer T-Documents T6/31-33.
[7] Refer [5] of Ms Cosio’s statement at T-Documents T6.1/31.
(a)as a Pharmacy Processing Officer – providing assistance to enquiries by pharmacists and/or processing applications in relation to:
Establishing a new Pharmacy to supply PBS subsidised medicines
Relocating an existing Pharmacy
Changing ownership of a Pharmacy
Temporary closure of Pharmacy
(b)as a Service Officer - including:
Processing PBS Refund claims as directed
Processing PBS written authorities approval as directed
Assisting in PBS Telephone Approvals per escalation guidelines
Completing adhoc tasks as directed
In her statement, Ms Cosio made the following statement about the claimed injury:
From my recollection, Michelle was undertaking her usual role (see point 5 for duties and responsibilities) on 16 August 2016 until around 3.30pm when she advised me that she was experiencing pain on her right shoulder and had made an appointment with her doctor after work to get it checked. Prior to this, she never raised her concerns nor was specific about her condition. Michelle contacted me the following day advising that she was not attending work from 17-26 August 2016 as Dr Alexander wanted her to rest. She sent her medical certificate via phone message. She was also referred for an ultrasound to see the extent of her condition. Michelle went back to Dr. Alexander on 26 August 2016 to discuss the result of her undertaking steroid injections or physiotherapy which she chose the latter. She was given a medical certificate to cover leave from 29 August – 16 September 2016. I made contact with Michelle once a week while she was on leave to check on her progress. On the 16^th of September, I spoke with her and was advised of her certificate of incapacity and restrictions that had to be observed on her return to work…
In her statement, Ms Cosio referred to Ms Russell having returned to work on 20 September 2019 on a restricted basis and also stated as follows:[8]
[8]In Michelle Russell’s statement to Comcare, she indicated that she first felt the pain on 08 August 2016 but thought nothing much of it. She went for remedial massages to help relieve her pain. I believe that Michelle felt under pressure and showed stress at the time as she was constantly required to assist with telephone authorities approvals when the queues and call volumes are high. PBS is in a highly rostered environment and Pharmacy Approvals work fell behind as phones were the priority. This became more apparent in the last year. There were also several changes in the workplace and work priorities have changed. The Pharmacy Program Officers were all experiencing the strain. Michelle worked additional hours on weekends and it was around this time that she decided to stop working overtime.
[9]As her line manager I have constant discussions with Michelle during her Coaching Sessions and I observed that she was not coping well with the new changes in the workplace. Michelle is a good worker and was always conscientious about her work. She felt the pressure of having to be escalated on the phones intermittently throughout the day whilst in the middle of processing a pharmacy application. Telephone Authorities line is to be answered within 30 seconds and has an average handling time of 90 seconds. It is fast and quite repetitive. We often discuss the things that are within her control and often ask her not to worry about the things that are outside her control. I have always promoted EAP to staff including Michelle if they felt they were struggling with something about work or personal reasons…
[8] Refer [7] of Ms Cosio’s statement at T-Documents T6.1/32.
An ultrasound of both of Ms Russell’s shoulders was performed on 19 August 2016.[9] The radiologist reported the following results of this ultrasound:
Tendons of the rotator cuff are normal bilaterally. Long head of biceps tendon is normal bilaterally. There is thickening of the subacromial bursa more marked on the right, and there are signs of impingement with bunching of the burse with abduction more marked on the right. There is no effusion or periarticular cyst.
[9] Refer T-Documents T6.5/43.
On 11 November 2016, Dr Alexander completed and signed a form containing a series of questions in respect of Ms Russell’s claimed injury.[10] On this form, the doctor described Ms Russell’s “symptoms/clinical presentation” as follows:
Pain right shoulder & refers down right upper limb.
Onset after more keyboard activity than usual in job 16/8/2016
Clinical signs of shoulder joint rotator cuff injury
Ultrasound confirmed bursitis
Physiotherapist confirmed this and scapular/thoracic component.
[10] Refer T-Documents T7/50-52.
Dr Alexander provided a diagnosis of “Decreased scapulohumeral rhythm With anterior shoulder impingement”. When asked whether the mechanism of the injury was consistent with the diagnosis/es and the presented symptomatology, Dr Alexander answered:
Yes desk work promotes leaning forward of chest/shoulder and repetitive work aggravating factor.
When Dr Alexander was asked whether she considered Ms Russell’s current condition was due to a pre-existing or underlying condition, she answered:
No. This is caused by work position desk and use of keyboard/computer mouse & sitting position required for hours without change.
When Dr Alexander was asked whether Ms Russell had suffered from an exacerbation/aggravation/acceleration of a pre-existing condition(s):
She may have had a previous shoulder injury before caused by the same work posture 2001. Recovered from this. Has not had not(sic) consultations re this until this year but has always avoided activities like hanging washing out on line. Tries to maintain good posture at work.
When Dr Alexander was asked whether Ms Russell’s injury had arisen out of/or in the course of her employment with the Department, she answered:
Yes. Desk & work position with repetitive keypad entry has led to shoulder/scapular component.
No other factors were identified by Dr Alexander as impacting on Ms Russell’s “return to work and health” and she noted that rheumatoid and breast cancer had been excluded as possible causes.[11] Dr Alexander described Ms Russell’s “proposed treatment plan” as follows:
Physiotherapy has been in place for last 2 months with good result and further review planned for 2 weeks then 1 month then cease.
[11] Refer T-Documents T7/51-52.
Allianz (acting on behalf of Comcare) arranged for Ms Russell to be medically assessed by a consultant occupational physician, Dr Nicholas Burke, on 10 November 2016.[12] Dr Burke considered that upon assessing Ms Russell, she had made a rapid recovery, was pain-free and had returned to work through a graduated return-to-work plan. Notably, Dr Burke opined:[13]
Certainly, on today’s assessment, there was no evidence of any clinically-significant bursitis. It is possible that the originating episode has settled. The right forearm symptoms remain a mystery and have completely settled. There are no ongoing symptoms at this stage. The description of symptoms she provided, does not tend to suggest any clinically-significant pathology in the right forearm.
[12] Refer T-Documents T8/55-62.
[13] Refer T-Documents T8/58.
Dr Burke stated that “bursitis” was a reasonable diagnosis in the circumstances and that the forearm symptoms were “medically unexplained”.[14] In relation to the connection of Ms Russell’s “bursitis” to her employment, Dr Burke did not consider Ms Russell’s condition to be work-related. Dr Burke stated in his report as follows:[15]
In order for bursitis to be accepted as work-related, there needs to be a significant abduction or flexion activities involving the shoulder. Her work would not generally tend to involve any significant abduction or flexion activities. Her work would not have involved any significant overhead or reaching-type activity, and as such, it is difficult to conclude that her condition of bursitis would have been related to her work.
…
[14] Refer T-Documents T8/59.
[15] Ibid.
Dr Burke opined that it was “quite possible” that Ms Russell had “some pre-existing subacromial bursitis, which was asymptomatic and this may have been rendered symptomatic by some factor”.[16] However, he opined that that he did not consider her work to generally involve activities that would have rendered asymptomatic bursitis symptomatic.[17]
[16] Refer T-Documents T8/60.
[17] Ibid.
Primarily based on Dr Burke’s medical report, a case manager at Allianz formed a view that Ms Russell’s condition was not contributed to, to a significant degree, by her employment with the Department, and recommended that a decision be made by Comcare that Ms Russell’s claim for compensation be denied.[18]
[18] Refer T-Documents T9.1/64-70.
After considering this recommendation, a delegate of the Chief Executive Officer of Comcare determined on 29 November 2016 that Comcare was not liable to pay compensation to Ms Russell for the injury “right shoulder subacromial bursitis” under s 14(1) of the Act (original determination).[19] On 22 December 2016, Ms Russell sought reconsideration of this decision.[20]
[19] Refer T-Documents T9.2/71.
[20] Refer T-Documents T10/72.
Dr Alexander prepared a further medical report dated 16 December 2016.[21] This report included a reference to Ms Russell having reported that she had suffered an “RSI many years ago (2001)” and that since that time, she had been unable to hang out the washing; it “always felt a bit weak”; and she “was very conscious of maintaining good posture whilst working”. The doctor’s report also stated as follows:[22]
[Ms Russell] had maintained a monthly massage to alleviate ongoing discomfort felt in the shoulder girdle and because she had not had any persistent problems she had not felt it worthy of reporting to her line manager.
[21] Refer T-Documents T10.1/73-74.
[22] Refer T-Documents T10.1/73.
Dr Alexander reported that by November 2016, Ms Russell felt that she was “gradually getting better”. Regarding causation, Dr Alexander stated as follows in her report:[23]
The reasons I believe this was work related are due to the temporal nature of the symptoms – the onset coincided with increased hours of work incurred doing usual the activities in her job, gradual reduction with treatment and time away from work and reduced contact hours. It is not unusual for shoulder pains to improve over a 3-6 month time period given the correct treatment and removal of aggravating factors.
[23] Refer T-Documents T10.1/73.
Dr Alexander reported that Ms Russell had a previous similar injury, which she recalled had taken approximately three months to resolve. Dr Alexander expressly ruled out a number of other possible causes for the development of Ms Russell’s symptoms.[24]
[24] Refer second last paragraph of T-Document T10.1/74.
As part of the reconsideration process, it seems that Ms Russell made a statement (undated) which in part, responded to Dr Burke’s medical report.[25] Specifically in relation to his opinion that her injury was not work-related because of the nature of her work activities, Ms Russell stated that she had no computer at home and no hobbies that would have exacerbated the condition, and that the only situation where she did repetitive work was at work, and “with the increasing workload with the telephones can include approximately 100 key strokes per call”. Ms Russell also stated that:
This would mean possibly completing between 20 – 40 calls per hour or a total of 200 – 300 calls during the day, which involves continual sitting and repetitive work.
[25] Refer T-Documents T10.2. It is apparent from the last sentence that Ms Russell’s statement was prepared at about the same time as Dr Alexander prepared her report on 16 December 2016.

In Ms Russell’s undated statement she confirmed that she had suffered the same injury 15 years prior and the pain had subsided with rest and pain medication and that she had returned to work within three months. Ms Russell explained that the pain she had felt with this more recent occurrence was “excruciating” to the extent that she told her doctor she felt like amputating her arm. Ms Russell said she had 23 days in total off work and upon returning, the pain was still present but not to the extent it was when it was “first diagnosed”. She stated that she had returned to using a keyboard one hour per day broken up into ten minutes every hour, and that she was working six hours per day. She said she was not performing her normal duties that she had prior to the injury.[26]
[26] Refer T-Documents T10.2/76.
On 18 January 2017, a senior case manager at Allianz formed a view that “a clear and close link” had not been established between Ms Russell’s employment and her right arm conditions, referring to the opinion of Dr Burke that the mechanism of injury (repetitive work activities) was not consistent with current literature in regard to the development of bursitis. The senior case manager concluded that the original determination was correct and recommended that it be affirmed.
On the basis of this recommendation, on 19 January 2017 an authorised delegate of the CEO of Comcare affirmed the original determination, for the reasons set out in the Report prepared by the senior case manager of Allianz (decision under review).[27]
[27] Refer T-Documents T11.2/83.
Ms Russell sought review by this Tribunal and the hearing was held over two days on 29 and 30 January 2019. Ms Russell subsequently lodged her written closing submissions on 18 February 2019 (Ms Russell’s Submissions). The Respondent lodged its written closing submissions on 27 March 2019 (Comcare’s Submissions).
RELEVANT LEGISLATION
Section 14(1) of the Act provides that liability to pay compensation in accordance with the Act arises 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 as:
(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. It means an ailment suffered by an employee or 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.[28]
[28] S 5B(1) of the Act.
“Significant degree” is defined in s 5B of the Act and means a degree that is substantially more than material. In determining whether the ailment or aggravation of it was contributed to, to a significant degree by the employment, without limitation, the following matters may be taken into account:[29]
(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.
[29] S 5B(2) of the Act.
“Ailment” is defined in s 4 of the Act. It means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES
The Tribunal considers that the issue for determination in this application is whether Ms Russell suffered an injury that resulted in incapacity for work or impairment, for which Comcare is liable to pay compensation in accordance with s 14 of the Act, in respect of her right shoulder.
To determine this issue, the Tribunal must answer the following questions:
(a)was Ms Russell’s claimed condition a disease; an injury other than a disease; or an aggravation of an injury other than a disease?
(b)if it was a disease, was it an ailment or aggravation of an ailment?
(c)if it was an aggravation of an ailment, was it contributed to, to a significant degree, by Ms Russell’s employment at the Department?
EVIDENCE
At the hearing, Ms Russell gave further evidence as to the precise nature of her work activities prior to the onset of her symptoms in August 2016. Ms Russell produced a set of photographs taken in 2018 (Exhibit “A2”), showing a side and aerial view of Ms Russell seated at her workstation.
Ms Russell also produced photographs of the rollerball mouse that she said she used before the injury in August 2016 (Exhibit “A6”), and a contour-pad mouse that she used after the injury (Exhibit “A7”). Ms Russell clarified that although the photographs of her workstation referred to above showed her using the rollerball mouse, by the time that photograph was taken, she had commenced using the contour-pad mouse. In other words, the rollerball had been placed on the desk to recreate a picture of the circumstances as they were at the time of the injury.[30]
[30] Refer Transcript 29 January 2019 at P-16.
Ms Russell’s representatives highlighted Ms Cosio’s detailed description of changes that had taken place in the workplace and Ms Russell’s work activities as set out in her email to Wendy Hargreaves dated 5 June 2017.[31] This email was produced to the Tribunal at the hearing (Exhibit “A3”), and included the following statements made by Ms Cosio (emphasis added):
[31] Refer [7] of Ms Russell’s Submissions.
…
Two years leading to Michelle’s injury, there were changes put in place to better service our customers.
-    We had digitisation of workload management of the different PBS work types including Pharmacy approvals and there were several teething issues in the beginning. This increased mousing activities for Michelle.
-    We also pulled our resources together and re-trained staff to assist with PBS authorities approval line. All Service Officers trained in this skill are utilised to manage the queue.
-    Initially, Michelle would only be escalated to telephone duties a couple of times per day which could be up to 20 calls, but need for her to assist had increased where she would sometimes be required intermittently for 3-4 hours per day and could be up to 50-70 calls.
-    She felt the pressure of intermittent telephone escalations whilst in the middle of processing a pharmacy application.
PBS authorities line has always been the top priority in our business line.
-    Michelle would take inbound calls that automatically drop in.
-    Calls need to be answered within 30 seconds.
-    Calls have an average handling time of 90 seconds.
-    Calls are fast paced-keying and very repetitive.
-    There are approximately 100 keystrokes per call.
At the hearing, Ms Russell confirmed that the PBS authorities’ approval work was the top priority because the doctors who made those calls were not supposed to be kept waiting for more than 30 seconds, and that this work was their “bread and butter”.[32] Ms Russell agreed with Ms Cosio’s evidence that the average call time was about 90 seconds. However, she said that the time of those calls could vary from less than a minute to five minutes or so, dependent upon the medication involved and the number of authorities.[33] Ms Russell said the work was fast-paced because they would try to deal with the call quickly to “get the doctor on and off as quickly as possible”. Ms Russell also said she was “dealing with just numbers so it just becomes, you know, initially you are slow but you know, you do over time become faster”. She said the doctors would “rattle off the numbers”.
[32] Refer Transcript 29 January 2019 at P-18.
[33] Ibid.
Ms Russell said that this work involved the registration of the approvals she provided to the doctors to issue the scripts for PBS medication. She said that initially she would obtain the patient’s Medicare number, but if it was not available, she would need to go to another screen and enter the provider’s number; the type of medication and condition; the quantity, repeats; and any additional comments.[34]
[34] Refer Transcript 29 January 2019 at P-19.
At the hearing, Ms Russell demonstrated to the Tribunal that when she was undertaking keyboarding activities as part of the PBS authorities work using the rollerball mouse, her hand was suspended over the edge of the desk and not resting on it. Ms Russell contended that this required her to engage in “postures recruiting the muscles and tendons in tensed or contracted positions”.[35]
[35] Refer [8] of Ms Russell’s Submissions.
Ms Russell described the Pharmacy applications as essentially involving clerical processing work where she would be referring to electronic documents using two PC screens. Ms Russell confirmed that when a “code red” signal flashed onto their computers indicating that there were not enough operators to deal with the PBS authorities approval calls, she was required to cease her usual Pharmacy work; change screens which involved a couple of fast keystrokes; and attend to the incoming approval call to commence dealing with the PBS authorities approval requests.[36]
[36] Refer Transcript 29 January 2019 at P-19 and P-20.
Ms Russell was taken to the reference in Ms Cosio’s 5 June 2017 email (see paragraph [42]) to “3-4 hours per day” in the third bullet point of the first paragraph, and asked whether this was a single block of time in a day, or several, to which Ms Russell confirmed it was the latter.[37]
[37] Refer Transcript 29 January 2019 at P-21.
Ms Russell gave evidence that aside from the first few keystrokes, the PBS authorities work predominately involved her using the numerical keypad positioned on the right-hand side of the keyboard. The rollerball mouse was positioned on her desk, off to the right of her keyboard. Ms Russell’s representatives contended as follows:[38]
Hence, her work was fast paced, its volumes had increased, her hours lengthened (extra Saturday duty on overtime) and had particularly required more use of the right hand and arm. Her right arm and shoulder musculature was contracted repeatedly in all these circumstances in order to perform the various movements without leaning on the desk and in circumstances where she was overtly stressed by the pressures of the work environment such that her supervisor could report that stress.
[38] Refer [9] of Ms Russell’s Submissions.
Ms Russell said that at the time when the “code reds” had increased, she had undertaken overtime in order to catch up on her usual Pharmacy work. She was unable to recall when she had worked overtime except to say that it would be on a Saturday for the full day. Ms Russell gave evidence that it was not normal to be doing overtime on a Saturday for her usual Pharmacy work.[39]
[39] Refer Transcript 29 January 2019 at P-22.
At the hearing, Ms Russell gave evidence that she first experienced symptoms of pain on 8 August 2016 during the day while she was at work. She said she had informed Ms Cosio that she had made an appointment to see her doctor that night.
During cross-examination, Ms Russell was tested about her memory of whether she went to see Dr Alexander on 8 August 2018 (or 16 August 2018 as indicated in Dr Alexander’s medical records). Ms Russell said she thought it was on 8 August 2016, but accepted that it was possible she might be mistaken.[40] Later in re-examination, Ms Russell accepted that she did not see Dr Alexander on 8 August 2016 but had experienced her symptoms for eight days prior to seeing the doctor.[41] Ms Russell said she had experienced pain in her right shoulder and on the entire underside of her right forearm.[42]
[40] Refer Transcript 29 January 2019 at P-26.
[41] Ibid at P-47.
[42] Ibid at P-29.
Ms Russell said that the symptoms of pain had come on by “a gradual process” and that the process might have started the week prior and “then it just got to the point where I thought I needed to seek medical advice”.[43]
[43] Refer Transcript 29 January 2019 at P-22.
Ms Russell confirmed that she was off work for 23 (business) days after she saw Dr Alexander and that during that time she noticed an improvement in her symptoms in that she did not have the same pain. She said that during this time, she was not doing any keyboarding and did not have a computer at home.[44]
[44] Ibid at P-23.
When Ms Russell returned to work, she gave evidence that she was mostly reading emails and “sorting the authority prescriptions and things”. She said she did not return to the “code red” telephone work. Ms Russell seemed unsure of when she re-commenced doing the “code red” telephone work but agreed that it was in the “new year of 2017” when she went back to work full-time. She said her supervisor gave her the option of not doing this work if she thought that she was unable to perform it. Ms Russell said she was unable to recall ever having to tell her supervisor that she was unable to do that type of work.[45]
[45] Ibid at P-23.
Ms Russell said that when she re-commenced the “code red” telephone work in 2017, she was not required to do overtime to catch up on her usual Pharmacy work. She said she was not required to work for a period of three to four hours per day on the “code red” work, as she had done previously. She indicated that, at most, she did this work for one hour.[46]
[46] Ibid at P-24.
Ms Russell gave evidence that she used medication (Voltaren and Panadeine), to deal with the symptoms of pain she experienced. She said she did not continue to use those medications after she returned to work. She said she had some physiotherapy while she was not at work and for a short time after she returned to work, “maybe one or two visits once I’d gone back full-time just to see how things were going”.[47]
[47] Ibid at P-25.
During cross-examination, Ms Russell confirmed that she had experienced right shoulder pain (but not in the right forearm) in September 2000 and it was similar to the right shoulder pain she had experienced in August 2016.[48] She said that she had taken about a fortnight off work at this time. Ms Russell said she had answered “no” to a question about whether she had experienced similar symptoms or illness on her claim form because at the time of completing the form, she had not recalled the right shoulder pain she had in September 2000. Ms Russell could not remember whether she made a workers’ compensation claim for that previous condition.[49] When asked whether it had continued to affect her, Ms Russell said that she had struggled with strength in her shoulders, “like pegging out washing and things. I have to have a break every now and again”.[50] Ms Russell also agreed that this had been the case from 2000 up until August 2016.[51] Ms Russell was asked why she had not disclosed those earlier symptoms, when on 16 August 2016 she had told Dr Alexander (according to her notes) that she had RSI many years ago, to which she answered, “I don’t know”. Ms Russell denied that she was “trying not to disclose” that she had a pre-existing problem.[52]
[48] Ibid at P-29 and P-30.
[49] Ibid at P-30.
[50] Ibid at P-31.
[51] Ibid at P-31, lines 30 & 31.
[52] Ibid at P-33.
Ms Russell said she has weakness in her left shoulder but not pain, like she had in her right shoulder. She said she could not recall having sought any treatment in relation to the problems in her shoulders from 2000 until August 2016. She said, “I have massages every month which is a thing that I’ve always done”.[53] Ms Russell accepted that prior to seeing Dr Alexander in August 2016, she normally had right shoulder pain, “but not to the point of the reason for my visit to see her. It’s something I’ve lived with”.[54]
[53] Ibid at P-31.
[54] Ibid at P-32.
Ms Russell accepted that she had told Dr Alexander it was unbearable for her to lay down on her right side. During re-examination, Ms Russell said that this had “pretty much” been the case since she had started experiencing symptoms on 8 August 2016. She said she had occasionally experienced problems lying down on the right side prior to 8 August 2016, but not to the extent that she was unable to lie down at all.[55] Ms Russell said she could not remember informing Dr O’Brien about this, but that she probably told him about her difficulty with hanging out the washing since 2000.[56] Ms Russell said she could not recall telling Dr O’Brien that she had not had problems with her shoulder until August 2016 until she had to stop work (other than telling him that in approximately 2001, she had experienced an episode of right shoulder and forearm pain which improved over time, allowing her to go back to work).[57]
[55] Ibid at P-47, lines 28-43.
[56] Ibid at P-36.
[57] Ibid at P-36.
Ms Russell was taken to the photographs that had been produced showing her seated at her workstation. Ms Russell gave the following evidence about her arm position while she was keying in numbers and information using the keyboard:[58]
Well, you’re actually raising, you’re not sitting there; I’m not going like that, I’m actually bringing it up, and then with the mousepad as you say, if it’s sitting there and my – my right shoulder is then at right angles with the keyboard…
[58] Ibid at P-40.
On the second day of the hearing, Ms Russell gave evidence that while she was keying on either the alpha or numerical parts of the keyboard, she did not rest her wrist and that it was positioned off the desk.[59] Ms Russell said she had been a “touch typist” ever since leaving school.[60] Ms Russell gave evidence that when she was using the rollerball mouse, her wrist would rest on the desk.[61]
[59] Refer Transcript 30 January 2019 at P-6.
[60] Ibid.
[61] Ibid at P-8.
Ms Russell accepted that she was not required to work in such a way that she needed to reach her arms over her head.[62] On the second day of the hearing, Ms Russell gave evidence that in the month leading up to the injury in August 2016, as part of her work, she would use the photocopier about 15 times per day and would sometimes open and close the lid to copy a document.[63]
[62] Ibid at P-41, lines 28 – 30.
[63] Refer Transcript 30 January 2019 at P-6 & P-7.
Ms Russell confirmed that she returned to work in September 2016 initially for four hours per day, and then for six hours per day, and eventually, for 7 hours and 21 minutes per day, excluding overtime or “code red” calls.[64]
[64] Refer Transcript 29 January 2019 at P-42.
During cross-examination, Ms Russell gave the following evidence about her symptoms as at January 2017, when she returned to full-time work:
COUNSEL FOR COMCARE: Yes. And if I understand your evidence correctly, since January 2017 you have had no deterioration in your symptoms in your right shoulder?---Not to the extent as to this injury, no.
No. So it’s – have you returned to what might be called your normal situation with upper limb pain and right shoulder pain, if you still intermittently suffer from those, that you were in before the code red work started, you had returned pretty much to what you would have regarded your normal state?---Yes.
Counsel for Comcare put it to Ms Russell during cross-examination that she had not made a “full and honest” attempt at doing the actions that Dr O’Brien had asked her to do during the medical examination, because she had been sent to Dr O’Brien in the context of this application. Ms Russell denied this assertion.
Medical articles on shoulder injuries
On the first day of the hearing, the Tribunal asked the parties whether they had identified any medical articles about causation in relation to shoulder injuries such as bursitis.[65] Counsel for Comcare said that its medico-legal expert, Dr Burke, had referred in his report to “numerous studies” being available in respect of “work relationships and shoulder impingement, subacromial bursitis” citing a publication by the Workers’ Compensation Board in Canada, and that Dr Burke had been asked to bring those studies to the Tribunal the following day when he was due to give evidence.
[65] Ibid.

After a short adjournment, counsel for Comcare tendered a literature review article entitled “Understanding Shoulder Injury” by Stephen Morrissey, Human Factors-Ergonomic Consultant Portland, Tigard, OR, USA, published in Advances in Physical Ergonomics and Human Factors, 2018 (Morrissey Article).[66] This literature review referenced 22 medical articles relating to shoulder injuries.[67]
[66] Refer Exhibit “A5”.
[67] Ibid at pages 21 & 22.
The Tribunal notes the following relevant extract from the Morrissey Article (emphasis added):[68]
[68] Ibid.
3. Shoulder Injury
There is a wide range of shoulder problems that can range from transient not well-defined aches, pains, and soreness of the soft tissues of the shoulder often called nonspecific disorders, NSD’s, to more serious conditions such as impingement, tendonitis, bursitis, arthritic changes and tears of the rotator cuff. While rates of different types of shoulder injury vary, for purpose of this paper, the most commonly reported shoulder problems are summarised next.
3.1 Persistent Soreness, Pain
Persistent shoulder discomfort or NSD’s are the most commonly reported shoulder problem and reflects the complexity of the shoulder and its response to overuse, aging, obesity, medical/personal issues, a more significant injury to the hard or soft tissues of the shoulder joint or, in some cases, radiating pain from a cervical spine injury. Psycho-social factors are also implicated in persistent shoulder soreness issues as stress can create static postures and loadings. NSD are of importance as they may reflect the early stage development of more significant injuries if exposures continue.
…
3.3 Bursitis
Bursitis is the irritation and swelling of the soft lubricating sacs, the bursa, that surround the tendons and joints/bony projections. Bursa protect these structures and allow easy sliding of the tendons during shoulder and upper arm motions. Bursitis is associated with repetitive shoulder/arm motions, work with poor shoulder postures, static loadings, an impact or degenerative changes in this area, or more commonly, a combination of these factors. Age plays a role in bursitis as the lubricating powder of the bursa decreases with age and with aging and overuse, the tendons also begin to wear and fray, possibly accelerating irritation of the bursa. While subacromial bursitis is most “common” due to the size of the bursa and its location in the subacromial gap, any of the other bursa can be affected.
…
3.5 Impingement
Impingement (syndrome) results from the compression of the tendons of the rotator cuff, the subacromial bursa, and other soft tissues in the subacromial gap when the arms are extended overhead; with sustained or static work postures; hunched shoulders; and in tasks with the arms extended fully downwards with effort; Impingement can facilitate bursitis and arthritic changes in this joint region, bone spurs, thinning cartilage, fraying and tearing of the tendons in this region, and perhaps some types of frozen shoulder.
5. Ergonomics Risk Factors
Ergonomics risk factors associated with shoulder problems include posture, exertion of effort, frequency, static postures, and hand-arm vibration. Almost always, a multitude of these risk factors are present at any one time which makes determining any unique contribution more difficult outside of well-controlled field studies or in a laboratory. As noted above, there is an increasing risk of shoulder overuse/injury as the number of these risk factors present in a task/activity increases.
5.1 Posture
Posture of the shoulder and the upper arm is referenced to a neutral or relaxed posture of the body where the arms are alongside the body. Motions of the arms-shoulder from this neutral posture around the body are defined in terms of abduction, adduction, flexion and extension of the shoulder-arm, and lateral or medial rotation of the arm. Awkward shoulder postures are generally considered as those activities requiring overhead work, work with hands above the shoulder, work with arms/hands behind the midline of the body, abduction of shoulders/elbow away from the body, static work in these postures.
Awkward, static, or extreme postures of the shoulder/upper arm have long been linked with the potential for development of shoulder pain and injury, particularly when other risk factors are present [4, 16]. There reviews of the scientific literature on musculoskeletal disorders, and shoulders in particular indicate there is evidence for a significant increase in shoulder problems when shoulder flexion or abduction exceeds 60[degrees], perhaps as low as 45[degrees][4,12,17-20]. From a physiological perspective, there are significant reductions in blood flow and increased tissue fatigue with arm angles as low as 30[degrees] indicating a second limiting or cautionary posture threshold to be considered, possibly explaining the large number of shoulder problems with computer based work with abducted arms/elbows, extended, abducted and externally rotated arms for mouse use [21].
5.2 Repetition
Repetition is the frequency with which a shoulder/upper arm motion is repeated and may be referenced to duration of an activity, or a static posture. The various references on shoulder injury all indicate there is evidence for a general adverse effect of “high frequency” (repetition), and for static or long duration activities but that it must be considered with other risk factors [17-19].
Morrissey concludes the article by listing a number of “tasks/postures and loadings” that he says are recognised as having the potential for shoulder overuse, including (of potential relevance)(emphasis added):
-    Work that requires regular, frequent or sustained awkward postures of the shoulders and arms.
-    External rotation of the hand-arm with abduction.
-    Tasks requiring regular or sustained hunched shoulders such as in computer work, hand assembly.
-    Elbow-shoulder abduction of more than 20 degrees.
-    Regular or frequent abduction or flexion of the upper arm of more than 60[degrees].
-    Sustained work with elbows abducted more than 30[degrees] and abducted and extended more than 30[degrees].
Dr John O’Brien
Dr O’Brien gave evidence that he had practised as an orthopaedic surgeon for about 45 years. He said he was a Fellow of the Royal Australasian College of Surgeons and Fellow of the Australian Orthopaedic Association. He said he had examined Ms Russell at the request of her lawyers and prepared a report dated 18 October 2017.[69]
[69] Refer Exhibit “A4”.
Dr O’Brien agreed that the description of bursitis given by Morrissey in his article (in section 3.3, as underlined above at paragraph [68]) was “a fair statement of bursitis”.[70] Dr O’Brien also agreed with Morrissey’s proposition in his article that static postures, as in maintaining a posture in a particular way over a long period of time, had an impact on this, as opposed to gross shoulder movements.[71] When asked for a further explanation about this, Dr O’Brien said:[72]
Apart from when a joint is totally in a neutral position, there will be muscles contracting to hold that to – in whatever position it might be. And so if you have your arms slightly, as you just mentioned before, abducted, away from the body, something has to hold it there, and that’s the contraction of a muscle. So static, I think, means that a muscle is being contracted for a prolonged period of time, not necessarily is it moving constantly, it’s just contracting. That, I think, is the situation, the constant contraction if there is a potential – and that’s what we’re talking about – or sorry, that article is talking about – if there is the potential, such as some degree of aging or degenerative process, you can develop an inflammatory process, and that inflammatory process is bursitis…so it is inflammation process of the bursa, and that’s – and so what we’re postulating here is that the nature of her employment over a period of time, albeit not by using a pick and shovel or whatever it is, has been the aggravating factor of the problem. And that has been shown to reverse when you take away the aggravation factor, that is, when she takes time off work and she appropriately rests away from that activity. I mean it’s not that she doesn’t use her arm, but she stops using the arm in the way that it was aggravated, the thing gets better. And so if you put those factors together, I hold the philosophy, if you like, that in this particular situation we can say, not with 100 per cent certainty, but with a fairly significant amount of certainty, that employment has caused an aggravation of potential pre-existing conditions. It has turned something into a significant symptomatic pathology. We’ve withdrawn the aggravating factor and we’ve gone back to the pre-existing situation of an occasional mild ache in the shoulder.
[70] Refer Transcript 29 January 2019 at P-56.
[71] Ibid.
[72] Ibid at P-56.
During cross-examination, Dr O’Brien described Ms Russell’s situation while sitting at her workstation as shown in the photographs that were produced to the Tribunal (as referred to in paragraph [40]). Dr O’Brien stated as follows:[73]
I mean, if you look at the first photograph, both hands are fairly much together. If you look at the next photograph, the right hand has moved through a considerable amount of rotation. In other words, the shoulder has rotated from internal rotation to external rotation, and in doing that, the arm has slightly abducted. I’m not saying – I never mentioned 60 degrees, but has slightly abducted, and then that arm has been maintained in that situation. If you put your arm on the desk with the arm slightly abducted, that doesn’t mean to say that muscles around the shoulder will not function. You’re only resting your forearm. She’s still actively moving all the muscles of her forearm, because she’s extending and closing her fingers. It’s not as if just because her arm is on the desk that she doesn’t move any muscles.
[73] Refer Transcript 29 January 2019 at P-58.
When it was put to Dr O’Brien that there was no force involved, he responded as follows:[74]
There’s the weight of the arm, always has to be moved, so therefore it’s a force. Every time muscle contracts, it is contracting against a force.
[74] Ibid.
In Dr O’Brien’s medical report, he diagnosed Ms Russell with “subacromial bursitis” and he said he could not exclude the possibility of “rotator cuff tendinitis”. Dr O’Brien provided the following opinion in relation to the issue of causation (emphasis added):[75]
Although the patient does not definite any specific injury, the history given clearly indicates that symptoms commenced and were subsequently exacerbated the patient’s continuing work which did involve the repetitive use of her right dominant arm. As the pathology appears to be of an inflammatory nature, repetitive mechanical factors are a significant etiological factor. Thus repetitive movement of the shoulder, not specifically confined to one direction, was the probable aetiological agent of this patient’s symptoms.
[75] Refer Exhibit “A4” at pages 4 and 5.
During cross-examination, Dr O’Brien was asked by counsel for Comcare to identify the “epidemiological study” that he had relied upon to reach the conclusion in his report as underlined in the above paragraph. Dr O’Brien was unable to provide any reference to a study but said it was in all the text books and was common knowledge that, “repetitive things can cause inflammatory process”. Counsel for Comcare did not dispute this but suggested to Dr O’Brien that this was the case where the repetition was associated with force. Dr O’Brien did not agree with this proposition.
Dr O’Brien was asked whether he was aware of certain epidemiological studies in the United States and Canada (as described to him by counsel for Comcare) to which he said he was not. Dr O’Brien commented as follows about such studies:
It has not been brought to my attention that they have produced anything which is not fairly common knowledge. In other words, what I’m saying is all the research that I know of has not been able to actually prove the specific aetiology of a number of inflammatory-type processes, including things like shoulder bursitis. And I would say that, because a lot of people do repetitive things and do not get bursitis. A lot of people don’t do heavy, repetitive things and do get bursitis.
Dr O’Brien agreed that as a general proposition, shoulder bursitis occurred more frequently in people who had “shown degenerative change” and that such change occurred more frequently in older people. He said he did not know if gender was also a risk factor.[76]
[76] Refer Transcript 29 January 2019 at P-62.
Dr O’Brien made it clear that he disagreed with the opinion of Dr Burke that for the bursitis to be accepted as work-related, it had to be in circumstances where there was significant abduction or flexion, and he considered that Ms Russell’s work did not involve this.[77] Dr O’Brien confirmed his belief that even a small, but repetitive movement (even if they did not involve gross upward and downward movements), could cause the sort of pathology that he considered may have taken place in Ms Russell’s arm. Dr O’Brien said that some people hold the view that there needs to be large excursion of movement to injure the shoulder. However, he said that “there is no research, no books, nothing that will give you a definitive answer to this question”.[78]
[77] Ibid at P-65.
[78] Ibid at P-66.
Dr Karen Alexander
Dr Alexander was Ms Russell’s treating general practitioner. She was not required by Comcare for cross-examination at the hearing. Ms Russell did not call her as a witness. The Tribunal notes that Ms Russell seeks to rely upon two medical reports prepared by Dr Alexander in which the doctor provides the following opinions (emphasis added):
(a)in her medical report dated 16 December 2016 – “The reasons I believe this was work related are due to the temporal nature of the symptoms – the onset coincided with increased hours of work incurred doing usual the(sic) activities in her job, gradual reduction with treatment and time away from work and reduced contact hours”;[79] and
(b)in the “Allianz” medical report dated 11 November 2016 – “…This is caused by work position desk and use of keyboard/computer mouse & sitting position required for hours without change”.[80]
[79] Refer T-Documents T10.1/74.
[80] Refer T-Documents T7/50.
Dr Nicholas Burke
Dr Burke gave evidence at the hearing and prepared three medical reports at the request of Comcare dated 18 November 2016 (First Report),[81] 23 April 2018 (Second Report)[82] and 22 May 2018 (Third Report).[83] Dr Burke told the Tribunal he had practised as a medical practitioner for 40 years and was a Fellow of the Australasian College of Occupational Physicians. He said he had been a member of this college for 33 years.[84]
[81] Refer T-Documents T8.
[82] Refer Exhibit “R1”.
[83] Refer Exhibit “R2”.
[84] Refer Transcript 30 January 2019 at P-11.
Dr Burke said he had examined Ms Russell on one occasion on 10 November 2016. He said he did not recall how long the examination went for, other than to say, “it would have been 30 to 40 minutes”.[85] Dr Burke said that he was provided with a copy of Dr O’Brien’s medical report before he prepared the Third Report (but not the Second Report).
[85] Ibid at P-53.
On the issue of causation, Dr Burke opined as follows in his First Report (emphasis added):
In order for bursitis to be accepted as work-related, there needs to be a significant abduction or flexion activities involving the shoulder. Her work would not generally tend to involve any significant abduction or flexion activities. Her work would not have involved any significant overhead or reaching-type activity, and as such, it is difficult to conclude that her condition of bursitis would have been related to her work.[86]
…
I think it is quite possible that she had some pre-existing subacromial bursitis, which was asymptomatic and that may have been rendered symptomatic by some factor. However, I do not believe that her work generally involves the activities, which would render asymptomatic bursitis symptomatic.[87]
…
As indicated above, I do not believe that her work would involve tasks or activities, which are known to result in an exacerbation of underlying subacromial bursitis or to cause the development of bursitis.[88]
[86] Refer T-Documents T8/59.
[87] Refer T-Documents T8/60.
[88] Refer T-Document T8/60.
Dr Burke gave evidence that Ms Russell probably had some underlying degenerative change in her tendon and bursa. Dr Burke considered that her work involving the use of the keyboard and the mouse in the way she did, was “not sufficient” to have caused inflammation resulting in the pain, disability, and incapacity for work and need for medical treatment. Specifically, he said (emphasis added):[89]
I think there’s a huge body of evidence which supports the contention that sustained abduction, which is your arm going away or sustained flexion, which is your arm going forwards, so maintaining a posture like that for an extended period of time can be associated with rotator cuff symptoms and disease. But there is a threshold and it has to be 60 degrees, it has to be 60 degrees or more or flexion in the shoulder, so that’s 60 degrees of flexion in the shoulder or 60 degrees of abduction in the shoulder before the rotator cuff disease can be brought into question, with respect to that particular activity. So there’s not sufficient movement of that shoulder in those sorts of low level posture between nought and 60, such that one can cause the problem. The problem is not so much with muscles, rotator cuff disease is a tendon injury, so it’s not the muscles which have the problem, it is actually the tendon and it’s the tendon when it gets up to a certain area above that 60 degrees then it starts to impact upon various structures. It starts to get pushed and impinged…
[89] Ibid.
Dr Burke was asked to explain how Chapter 9 of the AMA Guides to the Evaluation of Disease and Injury Causation issued by the American Medical Association (AMA Guides)[90] assisted him in reaching the conclusion as set out in the above paragraph. He said that the AMA Guides referred to abduction and flexion at a certain angle as being contributory, and that the guide pointed to there being insufficient evidence with respect to studies in the relationship to keyboard and mouse work, to make a conclusion that they were contributory to the development of rotator cuff issues.[91]
[90] Refer Exhibit “R3” – Extract (pp 318-330) comprising chapter entitled “Shoulder Tendinopathy, Impingement and Rotator Cuff Tears”.
[91] Ibid at P-18.
Dr Burke said the most important study was done in 1997 in the United States by the National Institute of Occupational Health & Safety (NOISH) entitled Musculoskeletal Disorders and Workplace Factors: A critical review of the epidemiological evidence for work-related musculoskeletal disorders of the neck, upper extremity, and low back, DHHS (NOISH) Publication 1997 (NOISH Study). Chapter 3: Shoulder Musculoskeletal Disorders Evidence of Work Relatedness of this study was produced to the Tribunal.[92] Dr Burke said that there had been “a huge body of research” since 1997, but this research had not changed the conclusions set out in the NOISH Study.[93]
[92] Refer Exhibit “R4”.
[93] Refer Transcript 30 January 2019 at P-18.
During re-examination, Dr Burke went on to describe the NOISH Study as:[94]
…the gold standard with respect to assessing work-relatedness, and as I’ve said, there’s been no further studies of any nature to refute, you know, the body of this work…So it remains evidence.
[94] Ibid at P-54.
AMA Guides
The Tribunal notes the general description given in the AMA Guides for the pathophysiology of shoulder tendinopathy, impingement and rotator cuff tears. The AMA Guides explain that most soft tissue shoulder disorders fall somewhere on the continuum of rotator cuff pathology, from mild disease – eg, early subacromial impingement syndrome (SIS) – to longstanding severe pathology – eg, a complete tear with cuff tear arthropathy.[95] The AMA Guides state as follows (emphasis added):
SIS represents a continuum of pathology ranging from early subacromial bursitis-rotator cuff tendinopathy to full-thickness rotator cuff tears with arthropathy. The etiology of rotator cuff disease has long been debated. Some have suggested that rotator cuff disease is primarily due to extrinsic compression, while others believe the disease is generally due to intrinsic tendon degeneration that leads to subacromial impingement secondary to cuff weakness and humeral ascent against the overlying structures.
Other causes of or contributors to SIS include a tuberosity fracture with a non- or malunion, a mobile os acromiale, calcific tendonitis, instability, and iatrogenic factors. Ultimately, rotator cuff disease is usually multifactorial, due to a combination of external compression, age-related degeneration, trauma, and intrinsic degeneration (such as vascular compromise).
…
The role of repetitive motion in the pathogenesis of impingement syndrome and rotator cuff tears remains incompletely understood. Multiple risk factors may contribute to the development of SIS that gets attributed to repetitive motions. They may be divided into patient-related extrinsic and intrinsic factors (age, supraspinatus outlet anatomy, pre-existing rotator cuff pathology, etc) and work-related factors (shoulder position, weight-lifting requirements, number of repetitions, etc). When SIS occurs in the setting of a repetitive-motion job, it is rarely the result of a single factor.
Impingement and Shoulder Tendinopathy
Impingement syndrome of the shoulder occurs when soft tissues, the subacromial bursa tendon(s), primarily the supraspinatus and perhaps the long head of the biceps and/or other portions of the rotator cuff, are pinched between structures above – the acromion, coracoacromial ligament, and/or distal clavicle- and the greater tuberosity below. This occurs during shoulder elevation (abduction and/or flexion) between 70[degrees] and 120[degrees]… SIS occurs somewhat frequently in persons whose work or avocational pursuits involve repetitive abduction and/or flexion, and it is usually manifested by pain upon and limitation of shoulder elevation.
…
The lack of universally agreed-upon inclusion criteria for studies of shoulder bursitis, tendonitis, and impingement has hampered population studies. Another confounder is that, although shoulder pain has been related to tasks with the highest estimated daily loads, a history of prior pain and current pain have been associated with higher scores on psychological scales, suggesting an interaction between physical and psychological factors. These findings support the hypotheses that excessive cumulative daily loads contribute to work-related shoulder conditions, and shoulder-arm pain seems related to psychological factors.
[95] Refer page 318 of AMA Guides at Exhibit “R3”.

The AMA Guides indicate the degree of evidence for specified occupational risk factors for shoulder tendinopathy, impingement and rotator cuff tear:[96]
-    Combination of risk factors (eg, force and repetition, force and posture): some evidence
-    Vibration: insufficient evidence
-    Highly repetitive work alone and in combination with other factors: some evidence
-    Forceful work: insufficient evidence
-    Awkward postures: strong evidence; sustained shoulder postures with more than 60[degrees] of flexion or abduction
-    …
-    Keyboard activities: insufficient evidence
[96] Refer page 318 of Exhibit “R3”.
In relation to the last of these activities, the AMA Guides make the following “references and comments” in relation to available studies (emphasis added):[97]
Insufficient evidence. Again, concerns with the outcome measure of pain or symptoms but included for completeness. Based on data from questionnaires, an epidemiologic study of frequent computer users found a prevalence of self-reported moderate-to-severe pain in the neck and right shoulder of 4.1% and 3.4%, respectively, and 1-year incidence rates for no or minor baseline symptoms of 1.5% and 1.9%, respectively…
A 2-year follow-up on 1951 office workers found that self-reported duration of computer use was positively associated with the onset of both arm/wrist/hand…and neck/shoulder symptoms… However, there was no association between the software-recorded duration of computer use at work and the onset of severe arm/wrist/hand and neck/shoulder symptoms using an exposure window of 3 months. The different findings for recorded and self-reported computer duration could not be explained satisfactorily…
A meta-analysis found 9 relevant articles, 6 of which were rated as high-quality. There was moderate evidence for a positive association between the duration of mouse use and hand-arm symptoms, with lesser risk for total computer use and keyboard use.
[97] Refer page 323 of Exhibit “R3”.
The authors of the NOISH Study reached the following conclusions following a review of over 20 epidemiologic studies that examined workplace factors and their relationship to shoulder musculoskeletal disorders (MSDs)(emphasis added):[98]
There is evidence for a positive association between highly repetitive work and shoulder MSDs. The evidence has important limitations. Only three studies specifically addressed the health outcome of shoulder tendinitis and these studies investigate combined exposure to repetition with awkward should postures or static shoulder loads. The other six studies with significant positive associations dealt primarily with symptoms.
There is insufficient evidence for a position association between force and should MSDs based on currently available epidemiologic studies. There is epidemiologic evidence for a relationship between repeated or sustained shoulder postures with greater than 60 degrees of flexion or abduction and should MSDs. There is evidence for both should tendinitis and nonspecific shoulder pain. The evidence for specific shoulder postures is strongest where there is combined exposure to several physical factors like holding a tool while working overhead. The strength of the association was positive and consistent in the six studies that used diagnosed cases of shoulder tendinitis, or a combination of symptoms and physical findings consistent with tendinitis, as the health outcome. Only one (Schibye et al. 1995] of the thirteen studies failed to find a positive association with exposure and a specific shoulder disorder or symptoms of a shoulder disorder. This is consistent with the evidence that his found in the biomechanical, physiological, and psychosocial literature.
There is insufficient evidence for a positive association between vibration and shoulder MSDs based on currently available epidemiologic studies.
[98] Refer pages 3-25 and 3-26 of Exhibit “R4”.
At the hearing, Dr Burke made the following observations to explain how it was possible to reconcile his opinions in respect of Ms Russell with the paragraphs from the AMA Guides highlighted in bold in paragraph [89]:[99]
…The most important studies, especially with respect to this hearing, is what sort of things are associated with the condition we’re talking about, which is subacromial bursitis or rotator cuff disease. The evidence supporting a linkage between those particular endpoints and keyboard/mouse work is not very strong. ..
[99] Refer Transcript 30 January 2019 at P-19.
British Columbia publication by The Workers’ Advisers Office
Dr Burke, in his Third Report, referred to a workers’ compensation publication from Alberta, Canada. At the hearing, a Canadian workers’ compensation publication was tendered, but it was from the Province of British Columbia, not the Province of Alberta. This was a Factsheet issued by The Workers’ Advisers Office (WAO) of British Columbia entitled “Activity-related soft tissue disorders” (WAO Factsheet).[100]
[100] Refer Exhibit “R5”.
Specifically, the WAO Factsheet prescribed five different types of activity-related soft tissue disorders (ASTDs) (also known as repetitive strain disorders, repetitive motion disorders, and accumulative trauma disorders), including shoulder bursitis and shoulder tendinopathy, which were said to be presumed, unless proven otherwise, to be due to the person’s employment if they occurred under certain circumstances as described in Schedule B to the Workers’ Compensation Act applicable in British Columbia. They included the following:
Bursitis

12(b) Shoulder bursitis (inflammation of the subacromial or subdeltoid bursa) Where there is frequently repeated or sustained abduction or flexion of the shoulder joint greater than 60 degrees and where such activity represents a significant component of the employment.
Tendinopathy

13(b) Shoulder tendinopathy Where there is frequently repeated or sustained abduction or flexion of the shoulder joint greater than 60 degrees and where such activity represents a significant component of the employment.

The WAO Factsheet stated that except where the above presumption applied, the relevant workers’ compensation authority in British Columbia, i.e. WorkSafeBC, would examine information provided by the employer; the job site visit; and the medical documentation; to decide whether the ASTD was due to the nature of the person’s employment. The Factsheet provided that in making that assessment, WorkSafeBC would assess what risk factors were present. The Factsheet stated that, “Usually, the most important physical risk factors are the intensity, duration, and frequency of repetition, force, awkward posture and vibration”.[101]
[101] Refer page 5 of Exhibit “R5”.
Practice Directive issued by WorkSafeBC
A Practice Directive (#C4-2) issued by WorkSafeBC (as amended on 22 May 2015) (Practice Directive) was also produced to the Tribunal.[102] Dr Burke confirmed that WAO was “no different from” the WorkSafeBC authority in British Columbia.[103]
[102] Refer Exhibit “R6”.
[103] Refer Transcript 30 January 2019 at P-22.
The Practice Directive stated that the determination of whether an ASTD was due to the nature of a worker’s employment required an analysis of risk factors relevant to the causation of ASTDs.[104] The Tribunal notes that the Practice Directive adopted the following approach when assessing whether a person’s employment was of a causative significance in the development of the person’s ASTD:
…the Board Officer generally considers how the work interacts with the work environment. When assessing whether employment-related risk factors caused or contributed to the development of a worker’s ASTD, Board Officers need to consider:
-    The location of the anatomical structure affected (e.g. the elbow);
-    The risk factors involved in the worker’s employment activities;
-    The muscle groups, tendons and joints involved in performing the worker’s employment activities; and
-    Whether there is a biologically plausible connection between the employment activities and the development of the ASTD.
[104] Refer page 1 of Exhibit “R6”.
This Tribunal is not bound in any way to adopt the same approach. However, the Tribunal considers the approach set out in the Practice Directive to be a sensible approach.
Appendix 1 – “Assessment Guidelines” to the Practice Directive establish some “thresholds” to be “used as a guideline only” in relation to considering “force, magnitude and duration”. The preface to this section provides as follows:
The risk factors listed below are to be used as guidelines only. They are not absolutes. The numbers listed below are entry level numbers to be considered as a threshold when assessing a single risk factor. The threshold may change where there are two or more risk factors present. Where the worker’s job duties do not meet all or some of the applicable risk factor(s) listed below, the claim may still be acceptable. Please note that risk for certain conditions are also set out in the RCSM, Chapter 4 policies.
The ‘weighing of evidence’ requires taking individual characteristics into play. All ranges/postures noted below should be considered on the basis of that which would be beyond the ‘available’ range for the individual.
Consideration must be given to the cumulative effects of multiple risk factors.
This means that Board Officers have to weigh the cumulative, or combined, effects of exposure to risk factors when adjudicating ASTD claims (e.g. continuous exposure versus intermittent exposure; or combinations of force and posture).
Risk Factors

Posture Body Part Movement Degrees of Movement

Shoulder Flexion Greater than 60

Shoulder Abduction Greater than 60

…

Repetition Body Part Movement[105] Degrees of Movement

Shoulder 2 per minute Greater than 2 hours

Elbow …

Elbow 10/min. (or greater) if elbow is working through < full range of motion Greater than 2 hours

Wrist …

Wrist 10/min. (or greater) if wrist is working through < full range of motion Greater than 2 hours

Finger 200 per min./finger (100 keystrokes/min) Greater than 4 hours
[105] As defined in the Practice Directive as “In a range in excess of functional normal”.

At the hearing, when Dr Burke was taken to Appendix 1 of the Practice Directive and asked whether those matters were relevant to his decision in relation to Ms Russell, he said:
With respect to Ms Russell the most important piece of … information is what is contained in that report which says that should bursitis is – is caused when – when there is frequently repeated or sustained abduction or flexion of the shoulder joint greater than 60 degrees and where such activity represents a significant component of employment.
Dr Burke gave evidence that in terms of the bursa and rotator cuff tendon, a few degrees of flexion or abduction would not have impacted on the tendon itself. He said:[106]
It’s the muscles surrounding it which will start to get fatigued and start to cause the symptoms, but not the – the rotator cuff.
MEMBER: And if the muscles get fatigued do they then place tension on the attachment points to the shoulder?---No, there’s no – so basically if the muscles get fatigued it’ll tell the person obviously, I need to – to rest, need to take the pressure off them. So the tendons themselves won’t be impacted upon.
[106] Refer Transcript 30 January 2019 at P-24.
However, the difficulty for Ms Russell was that during her working day she did not have many opportunities to rest. The keyboarding and mousing work during the relevant period was highly repetitive and intensive. It substantially, if not wholly, consumed her working day. It seemed to the Tribunal that Dr Burke did not take this into account.
When Dr Burke was asked by the Tribunal whether stress that a person may be under while they were working might have a physical effect on them, or affect them at a biomechanical level, he opined:[107]
It can affect – yes, it certainly can cause effects on the body, but on – on a tenderness structure in the shoulder I think that’d be quite tenuous to – to make that assertion. You know, obviously muscles, you know, when you – you are under particular stress then muscles can express it. Obviously you can get headaches and all sorts of obviously physical responses in those sort of circumstances, but you know, a tendon structure, you know, up there, I don’t believe is likely to be, you know, biomechanically affected in a stressful situation.
[107] Ibid at P-25.
UK article – Shoulder Disorders and Occupation
The Tribunal was informed that Dr Burke had also provided a research review paper entitled Shoulder Disorders and Occupation by Dr CH Linklater and Dr K Walker-Bone [Associate Professor & Honorary Consultant in Occupational Rheumatology], Southampton General Hospital, United Kingdom which was published in Best Pract. Clin. Rheumatol. 2015 June: 29(3); 405-423 (Linklater Review Article).[108] The authors concluded that there were multiple potential causes for the development of shoulder pain and this may be increased among some workers with jobs involving combinations of exposure to: overhead work; heavy loads; vibration; forceful work and repetition. The authors also concluded that psychosocial workplace factors were also importantly associated so that any preventative workplace initiative would need to consider both types of risk factors.[109]
[108] Refer Exhibit “R7”.
[109] Ibid at page 13.
Dr Burke said he was not familiar with the Morrissey Article.[110]
[110] Refer Transcript 30 January 2019 at P-26.
Dr Burke gave evidence that he rejected Dr O’Brien’s evidence that there did not need to be a gross movement in order for a shoulder injury to occur, because he said there was no evidence to support that conclusion. Dr Burke did not consider that it was enough for Dr O’Brien to have based his opinion on his specialised knowledge of joints, bones, shoulders, muscles and inflammatory conditions, as an orthopaedic surgeon. Dr Burke considered that Dr O’Brien still needed evidence to support his conclusion.[111] He said that every doctor had to practice evidence-based medicine or “they go against the wind”. Dr Burke said that he thought Dr O’Brien had based his opinion on his own experience in his own practice and that this was like, “taking evidence from a cherry rather than the whole orchard”.[112]
[111] Ibid at P-27.
[112] Ibid at P-28.
Dr Burke gave evidence that “all of us” have degenerative conditions. He stated:[113]
But everyone will, you know, develop a degenerative condition and we know that arthritis, most arthritis, even degenerative arthritis is not linked to occupation, so, you know, so, yes. In that circumstance I think the intrinsic factors are by far the most important.
[113] Ibid at P-28 & P-29.
Dr Burke said that based on the description of Ms Russell’s work at the relevant time in the ipar report, he thought it was “quite clear that there were no significant postural…issues”. Dr Burke said he asked Ms Russell to describe what she was required to do in her job, but he did not ask her to demonstrate it for him during the examination. When asked why he had not done so, Dr Burke explained:[114]
No, no, reason. I – I – I made a judgment that, you know obviously a qualitative judgment in my mind that – that I understood what was going on.
Cross-examination of Dr Burke about his background and the review articles and the British Columbia publications provided by him
[114] Refer Transcript 30 January 2019 at P-29.
During cross-examination Dr Burke confirmed that he was a Director of an organisation called 4cRisk. Accordingly to the website for this organisation, 4cRisk provides the following services (emphasis added):[115]
Established in 2006, 4cRisk has been a solutions provider to the industrial sector for over 6 years, supporting projects throughout construction and operational phases, with the development, planning and implementation of medical screening, compliance systems and providing all risk mitigation services in relation to employee health.
[115] Refer
Dr Burke confirmed that in terms of his overseas experience, he had most recently worked with Shell International for 15 years in Melbourne, London, Chester and Brunei in senior health management positions. He said he also had some recent work experience with Exxon in Papua New Guinea.[116]
[116] Refer Transcript 30 January 2019 at P-30.
The Tribunal made further inquiries (during re-examination) of Dr Burke as to the dimensions of his practice of medicine:[117]
[117] Ibid at P-54.
MEMBER: I just wanted to ask you, when was the last time that you treated a patient privately?---Treated?
As an occupational physician?---Last week.
So you have private patients?---Yes.
So you run a private practice at the moment, and then you also do medico-legal work?---Yes.
Okay?---Yes, I’ve got a practice in Brisbane that’s in Astor Terrance in Brisbane, and we will see, you know, patients. Most patients have some sort of work injury or similar, in that practice.
Do you do that through the employer, or are these relationships directly with the employees?---Most of the – are through an employer. An employer will ask.
Do you have any private patients?---Not at the moment, no, but occasionally I do have them, but most of my patients come through a, you know, a relationship with an employer.
Okay, and has that largely been the case with your practices previously?---Most of my practice would be along that - - -
Is that you are employed by a company and then - - -?---No, I’m not employed by a company. We have a, you know – basically we provide a service to that company, and one of the services we provided to them is, you know, assessing and treating people.
And the companies pay for the consultation fees?---Yes.
Yes. All right. Thank you.
COUNSEL FOR COMCARE: Just to clarify, corporations that employ employees that get injured, they send them to you for treatment?---Yes.
Dr Burke said he had not worked or spent a lot of time in British Columbia. He said he came across the British Columbian publications, “because they’re one of the jurisdictions which actually provides some advice with respect to causation”. Dr Burke was taken by counsel for Comcare to references in the Practice Directive to different provisions of the Workers’ Compensation Act in British Columbia, and he accepted that “their legislation obviously is different and all that sort of thing, but it shows how they take the original evidence and apply it in their jurisdiction”.[118]
[118] Ibid at P-31.
Dr Burke told the Tribunal he had not ever given evidence before the workers’ compensation authorities in British Columbia. He said he had read numerous decisions. During cross-examination, Dr Burke was asked how he had derived his knowledge of the Practice Directive and its operation. Dr Burke was initially confused by this question and then he answered:[119]
Maybe I was wrong to introduce this particular document. The reason I introduced this particular document was merely to demonstrate how a jurisdiction applied the original evidence, okay? So the original – and – and the important point was that they took it holus bolus basically, so they took the original evidence and applied it. So possibly I shouldn’t have – have used this particular jurisdiction, or you know, Canada as an example, but that was the purpose of – of presenting that information. It wasn’t presented, you know, to – to demonstrate my knowledge of – of conditions based on this particular legislation or something.
[119] Ibid at P-32 and P-33.
Dr Burke accepted at the hearing that in answering question 7 as set out in his Third Report by reference to “numerous studies available with respect to work relationships and shoulder impingement, bursitis, for instance” and that the various workers’ compensation boards in Canada had adopted evidence-based work relationship criteria to assess various work-related conditions, that what he should have cited was the evidence-based information which he had subsequently provided through the NOISH Study and “I should’ve just left it at that, so I apologise for that”.[120] He confirmed that he was basing his information on the “original evidence” which he said had been “beautifully summarised” in the NOISH Study and was “the scientific basis of causation”.
[120] Ibid at P-33.

Dr Burke confirmed that by examining Ms Russell “to understand the context”, and by considering the NOISH Study which provided the “biomechanical basis”, he could make a final decision about whether there was a significant contributing factor between her employment and pre-existing condition.[121] Dr Burke confirmed that he took into account Ms Russell’s stress levels at the time.[122] Dr Burke accepted that in a single case, multiple factors had to be considered. He accepted that one had to look at the time factor; the relationship between the onset of the symptoms; the activities of the person; the person’s psychosocial state at the time; the time factor in how the symptoms resolve and in response to what treatment. Dr Burke also accepted that any single epidemiological study was going to fall short of being able to answer those questions.
[121] Ibid at P-33.
[122] Ibid at P-34.
Subsequently, Dr Burke stated that he believed there needed to be some sort of threshold of “biomechanical contact”. He accepted that it was likely to be less in circumstances that were stressful or where there was more repetition or load or if the person had significant pre-existing shoulder issues, but he said there still needed to be some threshold because there needed to be a biomechanical impact upon the rotator cuff. He said that the rotator cuff only started impinging and impacting on the structure above it “at a certain degree”. He said those factors needed to be involved before the rotator cuff started to come into play, “otherwise, it’s just not doing anything”.[123]
[123] Ibid at P-49.
The Tribunal notes the following exchange that followed when counsel for Ms Russell sought to ascertain from Dr Burke the basis of his opinion as set out in the above paragraph. He responded as follows:[124]
[124] Ibid at P-50 and P-51.
COUNSEL FOR MS RUSSELL: Where, in any of these documents that you’ve presented as the supporting of your opinion, does it say that?---Well, I can – you know, there are – it’s within the documents, but I – do you want me to go through them in front of you at the moment and try to find something, or – but it’s – certainly that’s my evidence, and that’s the – so rotator cuff disease is only going to become clinically significant at certain – when the rotator cuff is actually activated, when it becomes involved in the actual process.
…
But I think you earlier agreed with the very paper that you put forward in terms of the practice direction, that risk factors were not to be used as absolutes, and that the - - - ?---Well I agreed with – and we’ve had a discussion in relation to that, yes.
Yes, and that the entry level numbers could be considered, at least in that jurisdiction – that’s a legal thing?---Okay, I accept that.
When assessing a single risk factor, and that the threshold may change, and you accepted this, and I just want to know whether you’re changing your answer now, that the threshold may change when there are two or more risk factors?---I’m not changing my answer. Obviously the more risk factors involved the circumstances are going to change.
Thank you?---But I don’t think it’s going to change substantially below that 60 degrees. It will come down, but I don’t think it’s going to be a huge reduction.
…
Now, focus on the question. The question is – are you ready for it? When you assume, and you take into consideration the cumulative effects of multiple risk factors, not single risk factors as we referred to just before, as in the paper, page 9 of this guide, there’s nothing in any of these resources of epidemiological studies that can give you any indication of the degree away from 60 degrees that would represent any sort of threshold?---Okay, and that was my – as I said, in my opinion - - -
Is there?---No, there’s – it’s – these – it’s not an absolute given in these, but as I said, I was giving my opinion in relationship to what I believe would be a reduction in that threshold.
I know you were giving your opinion, Doctor. Focus on the question please?---Okay, yeah, it’s – I can’t recall anything within these papers which would give an absolute guide to the reduction.
Dr Burke was asked to indicate the degree of abduction involved based on Ms Russell’s description to him about the movement she was required to do when working. Dr Burke indicated that his sense was that it was less than 20 degrees or “something like that”.[125] Dr Burke agreed that the other risk factors involved included age (degeneration); the likelihood of “something” pre-existing; and static postures of the shoulder away from the neutral.[126]
[125] Refer Transcript 30 January 2019 at P-51.
[126] Ibid at P-52.
The Tribunal notes Dr Burke’s answer to the following question in cross-examination:[127]
COUNSEL FOR MS RUSSELL: It would be fair to say that no single or even collective epidemiological study could answer the question in this particular case as to what was causing the bursitis that caused Ms Russell to cease work for 23 days and commence a course of treatment?---Of course every patient is different, every circumstance is different.
[127] Ibid at P-34.
Counsel for Ms Russell took Dr Burke to the following reference in the Linklater Review Article:[128]
However, a prospective study of newly employed workers by Nahid et al found psychological distress to be associated with a doubling of the risk for self-reported shoulder pain. Psychosocial factors such as job demand, poor support from colleagues and work dissatisfaction were also positively associated with musculoskeletal pain, including that at the shoulder.
[128] Ibid at P-34 and Exhibit “R7” at pages 9 & 10.
Upon consideration of this, Dr Burke accepted that he thought that job stress would double the risk of a worker reporting the symptoms.[129] It was later clarified by Dr Burke that he was not indicating that this included reporting irrespective of whether the symptoms were, in fact, being experienced by the worker. He explained as follows what he meant:[130]
Well, if you are under tension, under stress, and you do, you know, perceive some pain, then obviously it can magnify the perceptions and so that pain can become a lot more meaningful than when one isn’t under stress or distress.
[129] Ibid at P-35.
[130] Refer Transcript 30 January 2019 at P-42 and P-43.
Counsel for Ms Russell also took Dr Burke to the following reference in the NOISH Study (on page 3-19) about the results of a study by Hoekstra et al of teleservice employees in respect of an association between reporting shoulder symptoms and working at one location versus another, specifically:
A plausible explanation for the association between shoulder symptoms and these workstation design factors is that the non-optimally adjusted workstation components forced the employees to abduct the upper arms and/or hunch the shoulders.
Dr Burke was asked to comment on the fact that the Hoekstra study made no mention of the employees working at 60 degrees. In response, he referred to the conclusions of the NOISH Study on page 3-25, presumably the reference midway through the last paragraph, that there was evidence for a relationship between repeated or sustained shoulder postures with greater than 60 degrees of flexion or abduction and shoulder MSDs. Dr Burke claimed that this dealt with the Hoekstra study, which prompted the following further question:[131]
COUNSEL FOR MS RUSSELL: Do you see the word “Hoekstra” referred to in the conclusion paragraph?---I don’t see the word “Hoekstra”, but it says there:
Only three studies specifically address the health outcome of shoulder tendinitis... The other six studies [which is my interpretation of where your study is] with significant primary positive associations dealt primarily with symptoms.
[131] Ibid at P-40.
The Tribunal notes that these particular sentences in the report, as referred to by Dr Burke, related to a conclusion about the relationship between shoulder MSDs and highly repetitive work, whereas, the express reference to 60 degrees in the last paragraph on page 3-25 of the NOISH Study was dealing with a different conclusion relating to the relationship between shoulder MSDs and repeated or sustained shoulder position.
During re-examination, Dr Burke was referred to and accepted what the authors of the Morrissey Article had stated about there being evidence in the scientific literature of significant increases in shoulder problems when flexion or abduction exceeded 60 degrees, but also, “Perhaps as low as 45 degrees”. The Tribunal asked Dr Burke if he agreed with this to which he said:[132]
Well, if – I would agree that, you know, in the circumstances we’re talking about at the moment, we have multiple risk factors, you know, would have to be – you know, and we’re suggesting in that circumstance maybe a reduction below the 60. I would suggest, you know, if it was me making some sort of assessment of the individual, all those sorts of things we have talked about today, you know, getting down to 45 would be, you know, probably a reasonable contention.
[132] Ibid at P-52 and P-53.
CONSIDERATION
It was not in dispute between the parties that Ms Russell suffered a physical condition diagnosed as “right shoulder subacromial bursitis” and that it caused her incapacity for work, and the Tribunal finds so accordingly, for the reasons set out in [2] and [3] of the Applicant’s Submissions (with which Comcare agreed).[133]
[133] Refer Comcare’s Reply Submissions at [1] – see also [12].
The Tribunal then proceeded to consider whether Ms Russell’s condition of “right shoulder subacromial bursitis” was a disease; an injury other than a disease; or an aggravation of an injury other than a disease. There also did not appear to be any dispute between the parties that Ms Russell’s condition was a “disease”.
The next question for consideration was whether Ms Russell’s disease of “right shoulder subacromial bursitis” was an ailment or aggravation of an ailment. Again, it was not in dispute that Ms Russell had suffered from similar symptomatology previously indicative of a pre-existing shoulder condition. The Tribunal is satisfied that Ms Russell’s disease of “right shoulder subacromial bursitis” was an “aggravation of an ailment”.
The final question is whether this “aggravation of an ailment” suffered by Ms Russell in August 2016, was contributed to, to a significant degree, by her employment with the Department.
Ms Russell’s closing submissions
Ms Russell’s Submissions included the following contentions:
[38]     In this case, the relevant factors, taken together show:
(a)Ms Russell, an efficient and capable employee of some 36 years standing, had previously suffered right shoulder symptoms of a similar nature in or about 2001. At the time of the onset of symptoms in 2016 she was 52 years of age and might be expected to have some degree of age related deterioration of her shoulder. She had intermittent symptoms of a low level, not requiring treatment, from time to time since 2001.
(b)She entered upon a period of work where her hours increased owing to the introduction of the PBS authorities work. That work was fa[s]t-paced and involved a lot of repetitive keyboard work, particularly on the right hand side due to the bias toward the use of the numeric keypad for hours on end during her working day. She also worked Saturday overtime. She held her mouse also in the right hand when working.
(c)She adopted a posture that, when working, kept her arm and shoulder elevate away from the desk so as to move her hands to key and mouse. There were fast and repetitive movements. The postures and repetition mean extensive contraction and release of muscles including the arm and shoulder.
(d)The work, insofar as it was fast paced and in pressured time circumstances and disruptive of her normal routine, procures stress.
(e)She developed symptoms of bursitis, and possible tendinosis, and those symptoms were sufficiently painful to cause her to seek medical treatment, and to cease work for approximately 23 working days and participate in a graduated return to work over a period of time and away from the PBS authority work and other intensive keyboard activity in order to recover.
(f)The disorder did recover in response to the avoidance of that work activity and at that intensity.
(g)The medical investigations excluded any other possible or likely cause (such as cancer).
[39]      The sequential development of the condition and its
(a)        temporal association with increased work activity,
(b)given the potential of the medical factors (repetition, duration, intensity, posture, psychological stress etc)
(c)in a worker with predisposition (age, prior experience of symptoms) and
(d)the fact that it affected the right dominant upper limb and shoulder (where the extra work required the intensive use of the mouse and numeric part of the keypad) as well as
(e)resolving to a large degree on the rest away from that activity
favour the proper inference that the injury on the balance of probabilities arose out of the employment.
Comcare’s closing submissions
Comcare’s Submissions included the following contentions:
[24]The Applicant has been less than candid in disclosing a 16-year history of right shoulder symptoms and monthly treatment by massage to alleviate those symptoms despite opportunities to do so. Any reliance on her evidence as to her developing work-related right shoulder symptoms in the context of only her change in duties should be rejected: particularly in the context of Dr Burke’s examination on [10] November 2016, his opinion and scientific research.
[25]It is submitted that the Tribunal should prefer the evidence of Dr Burke as it is supported by longitudinal studies and research in respect of the relationship (or the lack of such a relationship) between subacromial bursitis and other musculoskeletal disorders of the upper limbs and shoulders, and occupational activities.
[26]The speciality of occupational medicine focuses on the inter-relationships between workers, their workplaces and their work practices (Australasian Faculty of Occupational Medicine).
[27]Dr Burke has practised as an occupational physician for 33 years focusing on the inter-relationship between workers, their workplaces and their work practices.
[28]There should be no express or implied criticism of Dr Burke, or indeed any occupational physician, who is employed by an employer or whose patients are referred by employers and the cost of treatment is paid by the employer: through what other circumstances would an occupational physician develop the clinical expertise with a focus on the inter-relationships between workers, their workplaces and their work practices?
[29] The Tribunal can take judicial note of common knowledge that medium to large manufacturers, mining enterprises, oil and gas exploration and extraction enterprises, fuel production and refinement, and coastal & international shipping for example, employ occupational physicians to maintain the health and safety of employees and treat employees on behalf of employers when injured.
[30] No evidence was led that Mr O’Brien had any speciality in the area of occupational medicine through research or study. He relied on only his clinical experience in treating his patients and is a surgeon.
[31]Mr O’Brien did not provide any evidence-based references to support his opinion or point to any additional training that focused on the study of the interrelationships between workers, their workplaces and their work practices.
The Tribunal must assess whether, on the balance of probabilities, and after taking into account the evidence, including the conflicting medical evidence, Ms Russell’s aggravation of the right shoulder acromial bursitis was contributed to, to a significant degree, by her employment with the Department.
The Tribunal found Ms Russell to be a candid and honest witness and accepts her evidence as to the activities she was required to do when working for her employer leading up to mid-August 2016. Comcare did not dispute those facts.[134]
[134] Refer Comcare’s Submissions at [1].
The Tribunal finds that prior to the onset of Ms Russell’s shoulder injury in August 2016, her duties had changed such that for substantial periods of time (sometimes up to four hours) she was diverted from her usual duties of processing Pharmacy applications, and was required to handle urgent incoming calls from doctors seeking approvals of scripts to be issued to their patients under the PBS. The call would automatically drop into Ms Russell’s headset, when it came through. She was required to place her arm on the numerical keypad on the right side of her keyboard and enter in numbers. Typically, she would move her right arm over to the alpha part of the keyboard to enter in the name of the medication and then be required to move her right arm back to the numerical keypad to enter further numerical information. She was repeatedly required to use her mouse when it was necessary to change processing systems or to change from one screen to another, and she used the mouse for a lot of the time when processing the usual Pharmacy applications to compile reports from applications submitted to the Department so that they could be considered for approval, and also when required to read and write emails.
The Tribunal finds that leading up to mid-August 2016, Ms Russell was required to do work at a pace that was intense, high pressured and highly repetitive. It was not disputed that at the relevant time, this work could require Ms Russell to handle 50 to 70 “code red” calls per day involving 100 keystrokes with an average call time of 90 seconds. It was not in dispute that Ms Russell was stressed by this work as observed by her team leader, Ms Cosio, and referred to by her in paragraph [9] of Ms Cosio’s Statement.[135] Ms Cosio also referred to Ms Russell experiencing stress in Ms Cosio’s email to Wendy Hargreaves on 5 June 2017.[136]
[135] Refer T-Documents T6.1/32.
[136] Refer Exhibit “A3”.
The Tribunal accepts the undisputed[137] evidence of Ms Russell and finds that when she was undertaking the keyboarding work leading up to mid-August 2016, her wrists were not resting on the desk. This meant that Ms Russell was required to hold her arm (and by extension, her shoulder) in a static non-neutral position (if neutral is when a person is standing with her arms hanging down alongside her body) and to move the right arm repetitively at a fast pace both towards the body, but importantly, away from the body, by approximately 20 degrees. The keyboarding and mousing activities were undertaken by Ms Russell for 7 hours and 21 minutes per day while working with three breaks permitted throughout the day. The Tribunal finds that at this time Ms Russell was working overtime for a full day on some Saturdays. The Tribunal finds that when she did so, Ms Russell was working six days per week, allowing only one day per week upon which she was able to rest her right arm and shoulder from these activities.
[137] It was not disputed by Comcare either at the hearing or when responding to her closing submissions.
Ms Russell was 51 years old as at August 2016. The Tribunal is satisfied that Ms Russell’s age was a factor which made her more susceptible (than a younger person) to suffer bursitis when undertaking the type of work activities described above.
The Tribunal finds that Ms Russell also felt the stress of working at the intensity described above and due to the constant disruption it caused to her being able to complete her usual duties of processing Pharmacy applications, by having to switch to the “code red” work for substantial periods as required. Her team leader, Ms Cosio, noticed this as mentioned at [9] of Ms Cosio’s Statement – reproduced at paragraph [10] of these Reasons for Decision. The Tribunal considers that Ms Russell’s stress at this time also made her more susceptible (than a person who was not stressed) to suffering bursitis when undertaking the type of work activities described above.

In relation to the medical evidence regarding causation, the Tribunal preferred the evidence of Dr O’Brien (and Dr Alexander), over the evidence of Dr Burke. Dr O’Brien appeared (more so than Dr Burke) to have considered the personal attributes of Ms Russell; the nature of the activities she performed at work; and the intensity of those activities; and to have applied them to his extensive knowledge of bone and joint structures as acquired from practising as an orthopaedic specialist and surgeon for approximately 44 years. The Tribunal accepts the explanation Dr O’Brien provided of the biomechanical effect on the shoulder of a person when performing the work as described by Ms Russell, including when the arm was held in a static non-neutral position, or when abducted (or adducted) to differing degrees when transferring the right hand from one part of her keyboard to another, or to the mouse sitting to the right of the keyboard.
Dr O’Brien appropriately acknowledged the limitations to which scientific evidence had established parameters with any reasonable degree of certainty, by which one could determine the aetiology of bursitis, particularly given the complexity of the anatomy and function of the human shoulder joint.Dr O’Brien’s reference to the complexity of the shoulder joint is consistent with statements made by the authors of the Linklater Article as follows: [138]
The shoulder has evolved to withstand heavy physical demand and to do so over an unusually wide range of motion. The achieve this, it is not a simple “ball and socket” joint but rather a complex composed of four articulations and a supporting arrangement of bones, muscles and ligaments within and outside of the joint capsule. However, its complexity and the nature of the demands on it make it susceptible to a range of articular and peri-articular pathologies. Shoulder pain has a diverse range of causes (Table 1)…
[138] Refer Exhibit “R7” at pages 1 and 2.
Dr Burke on the other hand seemed to have a much higher level of confidence about what those studies revealed which led him to conclude, rather adamantly, that Ms Russell’s condition could not be related to her work because she did not engage in activities that involved her abducting her arm by more than 60 degrees. In his reports, Dr Burke seemed to have applied this measure as a “hard and fast” rule.
The Tribunal considers that Dr Burke’s high level of confidence about those studies was not consistent with statements made in the review articles produced by Dr Burke about a number of limitations to those studies that should be kept in mind. For instance, in the “Abstract” of the Linklater Article, the authors stated as follows (emphasis added):[139]
Shoulder pain is very common and causes substantial morbidity. Standard classification systems based on presumed patho-anatomical origins have proved poorly reproducible and hampered epidemiological research. Despite this, there is evidence that exposure to combinations of physical workplace strains such as overhead working, heavy lifting and forceful work as well as working in an awkward posture increase the risk of shoulder disorders. Psychosocial risk factors are also associated. There is currently little evidence to suggest that either primary prevention or treatment strategies in the workplace are very effective and more research is required, particularly around the cost-effectiveness of different strategies.
[139] Refer Exhibit “R7” at page 1.
Further, under the heading “Occupational factors and shoulder disorders”, the first section is about “Methological limitations” where the authors explained as follows (emphasis added):[140]
In addition to the problems of classification discussed earlier in this chapter, there are a number of other important limitations to the available occupational literature which hamper interpretation. For example, studies have adopted widely differing methodological and statistical approaches that make comparison and interpretation of findings difficult. There is considerable heterogeneity between studies with regard to the study setting, and both the characteristics and size of the population under investigation. Additionally, there has been wide variation in methods of exposure assessment…
[140] Ibid at page 7.
The Tribunal considers that Dr Burke may have misunderstood what was intended by the publications issued by the workers’ compensation authorities in British Columbia. Dr Burke presented them in support of his opinions set out in his medical reports, to seek to justify why he had used a “60-degree abduction” measure to determine the issue of causation in Ms Russell’s case. As appropriately conceded by Dr Burke at the hearing (see paragraphs [111] and [112] of these Reasons for Decision), those publications were intended to be used under a different legal framework. He also conceded that even within the British Columbian jurisdiction, the Practice Directive was qualified as a guideline only and that they were not “absolutes”. The Practice Directive expressly stated that the thresholds contained within it could change if two or more other risk factors were present and that the cumulative effects of multiple risk factors must be considered.
The Tribunal considers that in effect, the Practice Directive did no more than establish a safe harbour in the context of a different legal framework to the one applicable in this case, within which there could be certainty that the development of a shoulder condition was work-related by prescribing the figures as set out in paragraph [98] which would establish a presumption of causation. However, this did not mean that any injuries arising in circumstances where the activities fell below the specified figures were to be ruled out. A case-by-case consideration of whether the legal test in that other jurisdiction had been met in those “below threshold” cases was still required to be undertaken, including by taking into account any other occupational or non-occupational factors that might be at play.
Dr Burke softened his position significantly during cross-examination. He accepted that the measure might in fact be less than 60 degrees in some circumstances, for instance where there were other factors at play. He eventually accepted that activities involving abduction as low as 45 degrees might give rise to problems, as was suggested in the Morrissey Article that had been produced by Ms Russell.
The impression of the Tribunal was that Dr Burke had approached the task that had been asked of him in this case, by applying a set measure to Ms Russell in a rigid manner based on the degree of abduction undertaken by Ms Russell when undertaking her work activities. In doing so, it was not evident that Dr Burke had ever measured the degree of abduction during the medical examination with Ms Russell when he had an opportunity to do so. This was reflected in the comments made by Dr Burke as referred to in paragraphs [82], [83], [99] and [115]. In fact, as referred to in paragraph [107], Dr Burke did not ask her to demonstrate those activities for him. Instead, Dr Burke made an estimate of this, in the abstract, when asked to do so in the witness box at the hearing. It was not clear to the Tribunal that Dr Burke had sufficiently considered Ms Russell’s personal circumstances or examined in any great detail the nature of her work activities leading up to mid-August 2016, or the pressure she had been placed under in the workplace. The medical examination was short: lasting for only 30 to 40 minutes, according to Dr Burke’s recollection.
The Tribunal noted a statement made by Dr Burke when he answered a question during the hearing as set out in paragraph [124] that: “…if it was me making some sort of assessment of the individual…” This appeared to be an odd statement for him to have made in the present context, and reflected that he had not yet made an individual assessment of Ms Russell on account of ruling her out because she had not engaged in work activities that included the abduction of her arm greater than 60 degrees. The Tribunal gained an impression that Dr Burke only undertook an individual assessment of Ms Russell for the first time while he was in the witness box at the hearing after he was prepared to concede that there were epidemiological studies suggesting the possibility of an increase in shoulder injuries in circumstances where work activities involved abduction of less than 60 degrees.
The only evidence before the Tribunal about the degree of abduction of Ms Russell’s arm was an estimate provided, in the abstract, by Dr Burke while he was in the witness box. It is unfortunate that Dr Burke, or Dr O’Brien for that matter, did not take a direct measurement of this angle of abduction of Ms Russell’s right arm while demonstrating the duties she was required to perform, when they undertook a medical examination of Ms Russell for the purposes of preparing their reports. Be that as it may and accepting that Dr Burke’s estimate in the witness box can only be described as a “rough” estimate, the Tribunal finds that the degree of abduction was up to approximately 20 degrees when she was performing her work duties prior to the injury.
The Tribunal is satisfied, on the balance of probabilities, that Ms Russell’s employment had contributed to, to a significant degree, the aggravation of her right shoulder subacromial bursitis in August 2016, on the following bases:
(a)primarily, on the medical opinions provided by Dr O’Brien and Dr Alexander to the effect that they both considered that Ms Russell’s work activities leading up to mid-August 2016 had caused the bursitis;
(b)the conclusion drawn by Steven Morrissey in the Morrissey Article as follows (see paragraph [68]:
…From a physiological perspective, there are significant reductions in blood flow and increased tissue fatigue with arm angles as low as 30[degrees] indicating a second limiting or cautionary posture threshold to be considered, possibly explaining the large number of shoulder problems with computer based work with abducted arms/elbows, extended, abducted and externally rotated for mouse use [21].
(c)the extent of abduction of Ms Russell’s right arm was up to approximately 20 degrees, during her work activities leading up to mid-August 2016 and her arm movements were performed on a highly repetitive basis and at a fast pace;
(d)a lesser angle of abduction of the right shoulder on an intensive and repetitive basis was likely to have a greater impact on Ms Russell than on others, due to her increased susceptibility arising from:
(i)the presence of a pre-existing right shoulder condition;
(ii)her age, being 51 at the time of the injury; and
(iii)there was a psychosocial factor at play, given that she felt a reasonable level of stress from the way the work was arranged; by the inherent intensity of the “code red” work she was required to do; and the constant disruption to the completion of her usual Pharmacy work;
(e)the lengthy duration of those highly repetitive activities as described in paragraph [42] and [43], and limited opportunities for Ms Russell to rest her arm and shoulder at that time, given that:
(i)her work activities were solely desk-based and essentially the same throughout the entire work day, being either the usual Pharmacy work or the PBS authorities work, meaning that she had no chance to rest her arm and shoulder during the work day; and
(ii)she was working full-time and also working overtime for a full day on some Saturdays to complete her usual Pharmacy work;
(f)when Ms Russell ceased her work activities and rested her right shoulder, her symptoms subsided and eventually she was able to gradually return to work – see paragraph [64]); and
(g)there was no evidence that Ms Russell engaged in any activities outside of the workplace which may have contributed or caused the aggravation of the right shoulder subacromial bursitis. Ms Russell led a quiet life outside of work and her exercise regime outside of work comprised walking two small dogs for about half an hour each day and was not physically demanding.
In relation to subparagraph [149(a)], the Tribunal has explained in these Reasons for Decision why it prefers the evidence of Dr O’Brien and Dr Alexander over the evidence of Dr Burke. The Tribunal reached this view after putting aside any consideration as to whether Dr Burke was positioned to give impartial medical advice in this application, given his particular practising history and his almost exclusive provision of medical services to corporations either as a medical provider or for many years as an employee of one of those corporations. It was ultimately not necessary for the Tribunal to form a view about this, because it was satisfied based on the other reasons as referred to above commencing at paragraph [138], that Dr O’Brien’s evidence should be preferred over the evidence of Dr Burke.
Section 7(4) of the Act provides that an employee is taken to have sustained an injury being a disease or aggravation of a disease on the day when he or she first sought medical treatment for the disease or it first resulted in incapacity for work or impairment, whichever happened first. The Tribunal accepts Ms Russell’s evidence that she first experienced symptoms on 8 August 2016 although between 8 August 2016 and 17 August 2016 she was not incapacitated for work or impaired. Ms Russell first sought treatment from her doctor on 16 August 2016 and was first incapacitated for work the following day on 17 April 2016. Accordingly, by operation of s 7(4) of the Act the Tribunal concludes that the “aggravation of right shoulder subacromial bursitis” suffered by Ms Russell, is taken to have occurred on 16 August 2016.
CONCLUSION
The Tribunal concludes that Ms Russell sustained an injury as defined by s 5A of the Act (to include a disease as defined by s 5B of the Act to include an aggravation of an ailment) being the “aggravation of right shoulder subacromial bursitis” for which Ms Russell first sought medical treatment on 16 August 2016. The Tribunal concludes that Ms Russell’s employment with the Department contributed to, to a significant degree, her injury.
Accordingly, the Tribunal sets aside the decision under review and in substitution, decides that Comcare is liable to pay compensation to Ms Russell under s 14 of the Act in respect of the injury of “aggravation of right shoulder subacromial bursitis” taken to have occurred on 16 August 2016.
In relation to Ms Russell’s application for costs, the Tribunal reserves liberty to apply to the parties to make submissions in relation to the question of costs to a date to be fixed upon application by either party.

155. I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

....[sgd]..................................................................
Associate
Dated: 25 October 2019

Date of hearing:

Date final (substantive) submissions lodged:

29 and 30 January 2019

27 March 2019

Advocate for the Applicant:

Solicitors for the Applicant:

Mark Carey

Slater & Gordon Lawyers

Advocate for the Respondent: John Wallace

Solicitors for the Respondent: Comcare (Contact: Brenton Lochert)

[2019] AATA 4363

25 October 2019

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies

Appeal

Posture	Body Part	Movement	Degrees of Movement
Shoulder	Flexion	Greater than 60
Shoulder	Abduction	Greater than 60
…
Repetition	Body Part	Movement[105]	Degrees of Movement
Shoulder	2 per minute	Greater than 2 hours
Elbow	…
Elbow	10/min. (or greater) if elbow is working through < full range of motion	Greater than 2 hours
Wrist	…
Wrist	10/min. (or greater) if wrist is working through < full range of motion	Greater than 2 hours
Finger	200 per min./finger (100 keystrokes/min)	Greater than 4 hours

Date of hearing: Date final (substantive) submissions lodged:	29 and 30 January 2019 27 March 2019
Advocate for the Applicant: Solicitors for the Applicant:	Mark Carey Slater & Gordon Lawyers
Advocate for the Respondent:	John Wallace
Solicitors for the Respondent:	Comcare (Contact: Brenton Lochert)