Ryan and Comcare (Compensation)

[2018] AATA 765

Ryan and Comcare (Compensation) [2018] AATA 765 (9 April 2018)

Division:GENERAL DIVISION

File Number:          2016/4446

Re:Nicole Ryan

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:9 April 2018

Place:Sydney

The decision under review is affirmed.

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

WORKER’S COMPENSATION – bilateral carpal tunnel syndrome – whether Respondent is liable to pay compensation to the Applicant – whether Applicant’s injury was contributed to, to a significant degree, by her employment – balance of probabilities – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

9 April 2018

1. The Applicant was born on 21 October 1976 and has been employed with the Department of Human Services since 30 June 2003. At the time of her injury she was a customer services operator.

2. The Applicant had, during her 12 plus years with the department prior to her ailment, spent most of her days operating a keyboard.

3. Her duties included making entries on the computer from details taken from both inbound and outbound phone calls. Most of her day would be spent on the computer, constantly typing, doing mouse work and phone work, except for breaks.

4. After not being well from about June 2015 until late October 2015 the Applicant developed swelling and pain in both wrists which led to a diagnosis of carpal tunnel syndrome.

5. The Applicant remained at work on restricted duties and, after attending various health professionals and undertaking a number of treatments, on 3 June 2016 she underwent a successful operation for bilateral carpal tunnel releases performed by Dr David Lee, hand and wrist surgeon.

6. She appears to have made a complete recovery.

7. The Applicant lodged a worker’s compensation claim on 17 February 2016 in respect of “bilateral carpal tunnel syndrome” (carpal tunnel syndrome).

8. On 26 April 2016 the Respondent determined it was not liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of the Applicant’s claimed condition.

9. On 25 June 2016 the Applicant sought a reconsideration of the determination and, on 20 July 2016, the Respondent issued its reconsideration decision affirming the determination dated 26 April 2016.

10. On 22 August 2016, the Applicant lodged an application for review with the Tribunal.

    ISSUES

11. The Tribunal is called upon to determine whether the Respondent is liable to pay compensation in accordance with s 14 of the Act, which sets out as follows:

    Compensation for injuries

    (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    (2)  Compensation is not payable in respect of an injury that is intentionally self‑inflicted.

    (3)  Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment

12. In doing so, the Tribunal must undertake an assessment of whether the Applicant suffered an injury for the purposes of ss 5A and 5B of the Act.

13. Counsel for the Applicant, towards the end of the hearing, appeared to concede that the Applicant was not relying on the contention that the Applicant’s employment was responsible for the condition, but that it had contributed to the claimed condition to a significant degree, within the meaning of s 5B of the Act. This reflected the evidence given before this Tribunal

14. Accordingly, the Tribunal accepts that, at the relevant time, the Applicant suffered from carpal tunnel syndrome in both wrists and the cause was not determined. The issue in this case is whether that condition was contributed to, to a significant degree, by her employment in line with s 5B(1)(c) of the Act.

    EVIDENCE

    Applicant’s evidence

15. The Applicant gave evidence that she would use a computer for at least 7 hours a day in the course of her work and had done so for many years.

16. For a few months prior to her ailment she had a slight change in duties leading to about an extra hour a day entering details on her computer from incoming phone calls.

17. She also had a bad cough that would not go away and affected her health from about June 2015 through to October 2015. She had been given antibiotics from time to time to treat this.

18. She stated that her fingers, hands and wrists started to get sore late in October 2015 and after a few weeks when it was clear the problem was not going to go away she went to her doctor and strapped her wrists. When this did not help and she was informed that physio would not help, she had some blood tests, and nerve tests. She ultimately had surgery on both wrists in June 2016.

19. The pain started in her left hand and fingers and then went to her right hand.

20. Prior to the injury she indicated that she had never had a workplace assessment done of her work station but in late November 2015 one was done and adjustments and improvements were made to her work station.

21. She stated that she had never had any problems with her hands or wrists before or any similar problems.

22. The injury affected her at home and at work and she depended on the help of her husband, her young daughters and her parents to manage.

23. She said prior to her operation she would suffer considerable pain continuously. She rated it a 9 out of 10 at work and a 7 out of 10 at home, including on weekends.

24. Movement in her hands would get better during the course of the day but it would take several hours at work before this occurred and did not lead to any lessening of the pain.

25. Typing and mouse work would increase the pain down her hands and fingers.  She stated that she would take pain reducing medication at work to help control the pain.

26. Apart from time off to attend medical appointments and some additional time off due to her ailments between October 2015 and June 2016, the Applicant said she continued to do modified work and after the operation in June 2016, she returned to work  and was   now fully recovered.

27. Her own specialist, Dr Pillemer, told the Tribunal in oral evidence that she was unlikely to suffer from the problem again.

28. The Applicant impressed the Tribunal as a witness of truth.

29. The Applicant  also indicated during evidence in chief that there were five other women from work who had had the same problem and who had been employed in similar jobs for a similar period  of time and, in a couple of instances, had their claims accepted by the department.

30. Counsel for the Respondent objected to this evidence, which I initially allowed to be given, but which was not pursed by counsel for the Applicant.

31. The Tribunal notes that obviously to be properly pursued each of these work colleagues would have had to be called and their medical histories explored in detail to assess any similarities with the Applicant. The Tribunal understands the impracticalities of such a course, but notes that it may have led to this case proceeding down a very different path. For example, the Tribunal notes the dearth of empirical evidence in relation to keyboarding and carpal tunnel syndrome.

32. A full exploration of similar fact type cases, apart from adding to the knowledge about what causes carpal tunnel syndrome, may well have led to a conclusion that perhaps the Applicant’s work was the cause of her ailment thus satisfying section 5A.of the Act.

33. However, as a result of the way this case progressed, this point is academic.

34. The Applicant did not say that the improvements to her work station helped her in terms of decreasing pain and it is fair to say that there was no evidence led by either counsel to the effect her work station in itself contributed in any significant or even substantial way to her ailment. It was not an issue pursued by either party. 

    Medical evidence 

35. The medical evidence brought on behalf of the Applicant can be summarised as follows

36. There was no family history of carpal tunnel syndrome.

37. The Applicant’s case was that there was a predisposition/vulnerability to the development of bilateral carpal tunnel syndromes which was not unusual for her age group, and noting the conditions of her work since 2003, had she been not doing that work her symptoms might well not have come on as they did in October/November 2015. Accordingly, the nature and conditions of her work would need to be regarded as a substantial contributing factor  to the development of her  bilateral CT problems

38. Further, and this point was strongly pushed by counsel for the Applicant, her work aggravated  the condition even if it had not caused it: see Dr Pillemer’s tendered reports, exhibit A3 dated 17 January 2017 and exhibit A4, dated 27 April 2017

39. Once it was operated on in June 2016 the problem was resolved.

40. The Respondent’s medical experts did not agree and Professor Youssef stated in his reports that Dr Pillemer did not bring any evidence to back up his assertions: see exhibit R5, page 2 of report dated 26 May 2017.

41. The Respondents medical experts stated that:

    ·The condition of carpal tunnel syndrome is usually a constitutional condition, associated with demographic risk factors and has not been shown to be causally related to prolonged keyboarding and mouse based activities in medical literature, based on numerous systematic reviews. See ST 62 page 116 of Dr Dias’ report.   

    ·The cause of the carpal tunnel condition was an inflammatory arthritis most likely caused by a viral arthritis. This caused synovitis and tenosynovitis of the wrist resulting in compression of the median nerves.  The appropriate therapy was bilateral carpal tunnel release (i.e. the June 2016 operation). See exhibit R4, page 19, Professor Youssef report of 21 February 2017)

    ·The fact the Applicant  had been ill in the months prior to October/ November 2015 was  relevant as this seems to have led to the Carpal tunnel condition 

    ·Her work did not aggravate the condition nor did it cause it. Indeed she found it easier to work later in the day after her morning stiffness had settled

42. Both parties medical experts conceded that there were widely differing views amongst experts as to what caused carpal   tunnel syndrome

43. The Applicant’s experts said her type of work could cause carpal tunnel syndrome. However, the Respondent’s experts said it would not, as the condition was usually a degenerative one prominent in certain sections of the population (females over 40 who were overweight, amongst other things) and was commonly associated with certain repetitive occupations such as operating a jackhammer repetitively – i.e. hard sharp repetitive work where the hand bends back at least 45% or more.

44. Three Doctors gave evidence before the Tribunal.  Dr Pillemer gave evidence for the Applicant and Dr Dias and Professor Youssef gave evidence for the Respondent.

45. Dr Dias, consultant occupational physician, saw the Applicant at the Respondent’s request on 23 March 2016. He found that her current work restrictions were entirely appropriate and should continue until she recovered from her operation.

46. He told the Tribunal that carpal tunnel syndrome was an enlargement of the median nerve in the small bony tunnel of the wrist.

47. He further said there were no clear studies to link keyboarding or mouse activities to it.

48. Dr Dias did say that had the Applicant not had the changes made to her work station after the 30 November 2015 assessment then there was the potential for aggravation of the symptoms. However he was happy with the changes and the limitations place on her by her employer whilst she suffered from this condition.

49. When asked in cross examination if her workstation caused or aggravated her condition he said “I don’t think this would cause or aggravate it”.

50. Professor Youssef then gave evidence. He is a consultant rheumatologist who examined the Applicant at the Respondent’s request on 21 February 2016.

51. As indicated above he confirmed his diagnosis of viral infection leading to arthritis and then carpal tunnel syndrome as being the most likely cause of the condition.

52. He said keyboarding would not make the condition worse. The problem is in the wrist as stated by Professor Youssef during evidence “it was the inflammation in the wrist…”

53. He went onto say that if her work duties had caused it he would have expected her to have experienced symptoms earlier.

54. He said a “viral disease causes arthritis and arthritis causes carpal tunnel.”

55. Professor Youssef said her desk station did not cause carpal tunnel syndrome, as her case was not a gradual onset. He said “it was hard to get it this quick,”

56. He said the use of hands and wrists can lead to an increase in the symptoms and anything that puts pressure on the wrists will increase pain.

57. Finally, the Applicant’s counsel called Dr Pillemer, orthopaedic surgeon to give evidence. Dr Pillemer examined the Applicant on 17 January 2016.

58. Dr Pillemer said he had never seen a virus cause carpal tunnel syndrome and a virus tendered to last weeks not months.

59. He felt the condition was likely to have been caused by her employment and her employment would have aggravated her symptoms. He said the jury was out on whether repetitive activities like typing would cause the condition but “they would aggravate an underlying condition.” This was because they were rapid and repetitive.

60. Dr Pillemer said keyboarding did not cause it but it was an aggravation of it.

61. He was asked in cross examination what he felt about Professor Youssef’s views and he said “it’s hard for me to argue with a Rheumatologist. I don’t defer to him, but he is the relevant specialist.”

62. He went on to say that he would agree that viral arthritis could cause synovitis which causes swelling in the carpal tunnel .He said the was no definitive answer to say typing either caused or didn’t  cause carpal tunnel conditions.

63. Dr Pillemer said that once the condition became more severe it would cause a patient more pressure throughout the day. He said pain is a symptom of carpal tunnel.

64. On the issue of aggravation as a result of the Applicant’s working conditions he said “in my opinion it would aggravate (the condition) more likely than not, but I can’t say on the  balance of probabilities it would aggravate it”.

    SUBMISISONS

65. The Applicant did not press the section 5A issue of causation and stressed the section 5B criteria of the Applicant’s employment contributing to the claimed condition to a significant degree.

66. The Applicant’s Counsel submitted that pain could be an aggravating factor in itself.

67. Counsel for the Applicant submitted that the Applicant’s evidence and that of her medical experts should be preferred over the Respondent’s on these issues.

68. The Respondent’s Counsel submitted the opposite to the above and added that Dr Pillemer had given evidence that indicated that the Applicant did not satisfy the test in s 5B of the Act as he had stated that he could not say on the balance of probabilities that the Applicant’s work would have aggravated the condition.

69. Respondent’s Counsel submitted that it was ‘more likely than not and this “fell short of the required standard of proof”. 

    DISCUSSION

70. The Tribunal thanks all parties for their assistance and submissions

71. The Tribunal is very pleased that the operation of 3 June 2016 was successful and that the prognosis is one of complete recovery.

72. The Tribunal feels it was sensible for Counsel for the Applicant not to push the argument that the Applicant’s work caused the condition.

73. The evidence points to, at best, it being uncertain what caused the condition. The evidence tended to favour the Respondent’s contention that it may well have been the illness and virus suffered by the Applicant from June 2015 until November 2015 that morphed into a viral arthritis (or something similar) and then into the carpal tunnel condition

74. The question then remains, does the Applicant satisfy the requirements of section 5B of the Act.

75. The Tribunal notes that whilst Dr Pillemer is not lawyer, his statement that the Applicant’s work situation more likely than not contributed to an aggravation of the condition can be taken at face value and given its normal English everyday meaning (as can his statement in relation to “balance of probabilities”).

76. The Tribunal considers that neither statement supports the contention that the Applicants work situation contributed “to a significant degree” to the claimed condition.

77. The evidence indicates that this condition came on very quickly, which seems not all that common. There was no obvious build up to indicate the onset of a problem which might have indicated that work was a problem.

78. The Applicant’s workstation, which clearly was unsatisfactory and had been for many years before 30 November 2015, seemed to have little, if any, effect on the Applicant and whilst there was evidence that without adjustment and improvement it may well have aggravated the situation once the condition was apparent, this did not occur because of the steps taken by the Respondent to alleviate any potential problem.

79. The evidence that the Applicant suffered most during the night and then for the first couple of hours at work before 10:00am is also important. It seems she got better, at least in terms of less numbness in the fingers, wrist and hands (if not in pain) as the day wore on.

80. In other words, once she settled into her tasks for the day it was easier for her. This is very different from someone who gets worse the more they do the same activity, which, in my view, the Applicant would need to show to satisfy the Tribunal that her employment contributed to the condition to a significant degree.

81. This condition is not like RSI (repetitive strain injury) and the evidence simply did not support the contentions.

82. The Tribunal notes that several other fellow employees at the Applicants work place, who have worked in similar jobs for a similar amount of time also have this condition.

83. As earlier discussed, this was not pursued, but given the lack of definitive studies in this field the Tribunal commends to the Applicant’s counsel and perhaps the relevant authorities or unions that there may be benefit for future reference if these ladies (or perhaps other workers in a similar situation in another unrelated workplace) are spoken to and a detailed analysis be undertaken to see what if any work connection there is to the carpal tunnel condition.

84. As there are varying views on what causes carpal tunnel syndrome, a study along the line suggested above may add to the available knowledge in this area.

    DECISION

85. For the reasons given above the decision of this Tribunal decides that the reviewable decision dated 20 July 2016 is affirmed.

I certify that the preceding 85 (eighty five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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

Associate

Dated: 9 April 2018

Dates of hearing:	23 and 24 November 2017
Counsel for the Applicant:	Mr K Pattenden
Solicitors for the Applicant:	Mr J Carroll, Slater & Gordon Lawyers
Solicitors for the Respondent:	Mr C Bilboe and Ms S William