Santiago and Australian Postal Corporation (Compensation)

[2021] AATA 4662

Santiago and Australian Postal Corporation (Compensation) [2021] AATA 4662 (13 December 2021)

Division:GENERAL DIVISION

File Number:          2020/1887

Re:Marilyn Santiago

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:13 December 2021

Place:Sydney

The reviewable decision should be set aside. The Tribunal substitutes a decision that on and from 4 December 2019 to 22 July 2021, inclusive:

(a)The Applicant continued to suffer from the accepted condition of ‘moderate aggravation of De Quervain’s tenosynovitis on the right and minor aggravation of De Quervain’s tenosynovitis on the left’;

(b)The Applicant’s employment with the Respondent continued to significantly contribute to the Applicant’s accepted condition; and

(c)The Respondent had a liability pursuant to subsections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of the Applicant’s accepted condition.

.........................SGD...............................................

Senior Member M Griffin QC

CATCHWORDS

COMPENSATION – Applicant employed as Senior Postal Services Officer – Applicant developed condition of moderate aggravation of De Quervain’s tenosynovitis – whether Applicant continued to suffer De Quervain’s tenosynovitis – whether this was related to her work with Respondent – decision under review set aside and substituted

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 (Cth)

CASES

Woodhouse v Comcare [2021] FCAFC 95

REASONS FOR DECISION

Senior Member M Griffin QC

13 December 2021

1. The Respondent issued a determination on 4 December 2019 finding it had no liability under the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act) for the Applicant's claimed condition of moderate aggravation of De Quervain’s tenosynovitis (DQT) on the right wrist and minor aggravation of DQT on the left wrist which was deemed to have been sustained in 2018, described as a bilateral wrist injury.

2. The Applicant sought review of the determination on 29 January 2020 and on 17 February 2020 the Respondent issued a review of the decision affirming the original determination on 4 December 2019. It appears, in summary, that the decision of the Respondent was based upon a satisfaction that the Applicant no longer suffered from the claimed injury which had been assessed originally as being contributed to a significant degree by her employment with Australian Postal Corporation.

3. The Applicant lodged a review with this Tribunal on 26 March 2020.

4. On the Applicant's case, in order to succeed on the facts as the Tribunal finds them, the Applicant must satisfy the Tribunal that the Applicant suffered from DQT at the relevant time and further, that the cause for the persistence of her claimed condition continued to be contributed to, to a significant degree, by her employment.

5. The term ‘significant degree’ as it appears in section 5B(1) of the Act means ‘substantially more than material’. Contribution to a significant degree does not require employment to be the sole cause of the condition or even a sole significant contributor. What is required for the continuation of the causal nexus between the condition and the Applicant’s employment with the Respondent is that the contribution made by the employment to the continuation of the condition remains substantial.

6. So much is clear from the decision of the Full Court of the Federal Court in Woodhouse v Comcare [2021] FCAFC 95 at paragraphs [85] and following:

   ‘Logically, the causes of a disease or ailment tend to cease once the condition is suffered and the employee ceases employment or the causative factors are remedied.  However, having been caused by the contribution of the employee’s employment, the condition itself often continues and compensation is payable to the extent to which it results in death, incapacity or impairment.  It does not follow that, in order for Comcare to remain liable, the employee’s employment needs to remain a constant and continuing contributor to the ongoing injury.  That would rarely, if ever, be the case.  However, what is required is that the contribution requirement remain in place in the sense that the disease or ailment continues to have the characteristic of having been contributed to in a material degree by the relevant employment.  To say that the employment factors continue to contribute in a material way to the employee’s condition is an inarticulate way to express this.  It is preferable to say that the causal nexus between the employee’s employment and suffering of the disease continues unbroken.  In this way, the operative effect of the expression “was contributed to” in the definition is not spent once it has connected the employee’s employment with the contraction or aggravation of the ailment.  In order for a disease to remain one in respect of which Comcare will be liable, it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment.  If at any later point in time the ailment suffered by an employee ceases to have that character, it will also cease to be a “disease”, and will therefore cease to be an “injury” in respect of which compensation is payable pursuant to s 14 of the SRC Act.  For the duration of each of the periods in respect of which the question of compensation is being determined, it must be possible to say that the contribution requirement was satisfied in respect of the ailment. 

   The above is coherent with the purpose of the SRC Act to provide compensation for work-related injury or illness.  On the construction advanced by the applicant, Comcare would be required to pay compensation to employees whose ailment is not causally connected with their employment but must do so merely because the ailment had been, but is no longer, contributed to by the employee’s employment.  Contrary to the applicant’s submission, a past connection to an employee’s employment which has ceased at the relevant time does not suffice to make an ailment “work-related” at that time in any real sense.

   …

   Conversely, the applicant’s preferred construction should be rejected.  Comcare has no liability under s 14 in relation to an ailment, the continued existence of which can no longer be said to have the necessary causal connection to the employee’s employment.  The mere fact that the ailment suffered may once have had the necessary connection is irrelevant.  Even where the ailment continues unabated, if it ceases to have the characteristic of being one which was relevantly contributed to by the employee’s employment, Comcare’s liability ceases.’

   Factual background

7. At relevant times, the Applicant who is 51 years of age, was employed by Australia Post as a Senior Postal Services Officer, having worked for Australia Post for over 22 years.

8. On 5 April 2018, the Applicant reported to her superior at the Nepean hub that she had experienced pain in her right hand and wrist at work. The work was repetitive data entry work using a handheld stapler and the moving of packages. The following day the Applicant attended her General Practitioner, Dr Law, and gave a history of worsening right wrist pain.

9. On 2 May 2018, the Respondent accepted liability for right wrist tendonitis.

10. The Applicant began to develop pain in the radial aspect of her right wrist and in her left wrist by August 2018, continuing her work involving lifting parcels weighing up to 2 kilograms. An ultrasound authorised by Dr Law and performed on 16 August 2018, identified bilateral DQT and a medical certificate certifying unfitness for work was provided. By the end of August, a lighter, 3-day workload was stipulated and a limitation in that workload.

11. The Applicant was transferred to Penrith retail Post Shop in early September 2018 and was examined on 12 September 2018 by Dr McGill whose evidence will be discussed below. A diagnosis was given of mild bilateral DQT but said to be unrelated to the Applicant's employment. There was some contention between the parties based on the medical opinions expressed by Dr McGill who, on 15 November 2018, provided a supplementary report which expressed the opinion that the Applicant's employment duties had not caused the onset of DQT but had increased the level of discomfort she experienced as a result of that condition.

12. In the event on 4 December 2018, the Respondent accepted liability for moderate aggravation of DQT on the right and minor aggravation of DQT on the left, dating the condition from 16 August 2018.

13. Of some significance, in the Tribunal’s opinion, is the evidence that as early as 2019, in March, the Applicant attempted some part-time return to the Nepean centre for two days a week with three days working at Penrith. The Tribunal accepts that the Applicant accurately reported to Dr Law that she experienced an increase in pain in her wrists when she worked at the Nepean centre. The Tribunal accepts this evidence as truthful and correct and places significance on it, overall, in the assessment of liability on behalf of the Respondent.

14. From August 2019, Dr Law informed the Respondent that the Applicant was unable to carry out counter duties and other duties because of the repetitive nature of the work involved in those tasks. In turn, Dr Law was provided by the Respondent with a detailed description of the tasks required the Applicant for the purpose of Dr Law assessing the Applicant’s ability to perform those tasks.

15. On 24 September 2019, Dr Ness assessed the Applicant as no longer suffering from DQT and that in his opinion, the Applicant’s wrists and hands were normal.

16. On 10 October 2019, the Applicant had performed upon her a bilateral wrist ultrasound demonstrating bilateral DQT but more marked on the right wrist. This information was provided to the Respondent.

17. On 31 October 2019, Dr Ness provided a second report to the effect that at the time of his examination of the Applicant, she did not display any clinical signs of DQT which resulted in the Respondent issuing a determination of no liability.

18. On 4 December 2019, the Respondent issued a determination of no liability.

19. On 13 January 2020, the Applicant was examined by Dr Chan, a hand and wrist surgeon, who noted swelling over the right wrist and a positive Finkelstein's test and ultimately diagnosed mild bilateral DQT.

20. On 11 May 2020, the Applicant’s light duties ceased and the Applicant ceased work and commenced extended leave.

21. In March 2021, the Applicant underwent a bilateral ultrasound which confirmed DQT which was supported by Dr Chan in a report on 22 March 2021. Dr Chan regarded the condition as a work-related injury.

22. On 26 March 2021, the Applicant underwent an ultrasound guided steroid injection that, the Tribunal accepts on the evidence, had beneficial effects on the Applicant for some 12 weeks.

23. On 23 July 2021, the Applicant returned to work at Nepean and recommenced normal duties.

24. A fundamental question in this hearing is whether from 4 December 2019 the Applicant continued to suffer DQT and whether that was related to her work since that time.

    The medical evidence

25. The Tribunal prefers and accepts the evidence of Dr Gumley. That evidence, in the Tribunal’s view, is based on acceptable evidence, including objective evidence of observations made by Dr Gumley of the Applicant. That objective evidence, in the Tribunal’s view, is a benchmark by which the acceptability of the entirety of the evidence of this witness may be judged. For example, Dr Gumley, the Tribunal accepts, observed oedema and correctly interpreted that condition as being directly related to DQT, an issue central to this hearing.

26. The Tribunal accepts Dr Gumley's evidence that the symptoms of this disease may in fact fluctuate which may provide different presentations to different examining doctors. The Tribunal accepts the evidence of the ultrasound conducted in March 2021 that supports ongoing disease and finds that the disease, on all the evidence that the Tribunal accepts, operates in a significant way on the Applicant’s right hand.

27. As to the evidence of Dr McGill, the Tribunal is not prepared to accept the ultimate opinion expressed by him. Dr McGill’s opinion was that, in 2018, the Applicant did not suffer the subject disease, an opinion which he changed as a result of later evidence being produced. Dr McGill's opinion presently is that if the Applicant does suffer from the disease, the Applicant was predisposed to that disease and the mild effects of its operation do not affect her abilities to carry out her work. The evidence which Dr McGill gave appeared to the Tribunal to be partial and there was a reluctance, to say the least, by the doctor to be open and helpful in the manner in which he answered questions.

28. The Tribunal has formed the view that part of the opinion expressed by Dr McGill was based upon his interpretation of psychological and other reasons which he attributed to the Applicant and which, in so attributing, strayed beyond the proper boundaries of permitted opinion within his field of expertise. Thus, in the Tribunal’s view, such inappropriately expressed opinion infected the propriety of his reports and evidence and diminished considerably, the acceptability of his evidence and the weight to be given to that evidence.

29. As to the evidence of Dr Ness, the Tribunal is of the view that his reports and opinion suffer from the same shortcomings as that of Dr McGill.  As with the opinion of Dr McGill, the opinion of Dr Ness is attended by an inappropriate excursion taking into account matters which are beyond both doctors’ field of expertise and inappropriate to the proper formulation of the experts’ opinion. In both cases, those opinions appear to have assigned reasons why the Applicant made complaints as to her symptoms and in each case, the opinions appear to have been constructed in order to conform to the view that the Applicant was not suffering to the degree or in the way she expressed her physical symptoms.

30. Furthermore, as expressed elsewhere in this decision, the Tribunal did not consider that Dr Ness had as broad, substantial or relevant an expertise compared to Dr Gumley. The Tribunal takes the same view of Dr McGill’s evidence in terms of expertise and relevant experience and prefers the evidence of Dr Gumley over that of Dr McGill and Dr Ness.

31. Nothing in the report of Dr Chan, who was not called to give evidence, is suggestive of partiality, nor in the oral evidence of Dr Gumley did the Tribunal form the view that his evidence was anything other than entirely impartial. Dr Gumley’s evidence in particular was, in the Tribunal’s view, more comprehensive, positive and confident than the views expressed by Dr McGill and Dr Ness.

32. As to questions of credit in relation to the Applicant, the Tribunal recognises that the Applicant was subjected to vigorous and detailed examination by both counsel and the Tribunal itself.

33. The Tribunal has come to the conclusion that the Applicant was attempting to be a witness of truth even though there are aspects of her evidence, properly criticised by the Respondent, that display what the Tribunal ultimately considers to be minor inconsistencies which do not, in any way, affect the credibility of the Applicant.

34. The Applicant, for example, was not, in the Tribunal's view, so sophisticated that she was able to make an assessment of the Tribunal's attitude to Dr McGill and compose her later evidence to coincide with what she perceived, rightly or wrongly, to be the Tribunal’s attitude.

35. The issues about which the Applicant was taxed were detailed and complex, particularly in relation to what symptoms she reported at what time to any particular number of medical practitioners.

36. It may be supposed that, in the ordinary course of human recollection, there would be some inconsistencies in the recollection of what was reported, including what was said and the terminology which was used by the Applicant in the reporting of her symptoms at various times to various doctors and also in referring, for example, to her satisfaction of placement at Australia Post business centres, Penrith and Westfield.

37. The Tribunal notes that English is not the first language of the Applicant who had no difficulty at least understanding the basic matters about which she was asked. Although the sophistication of the Applicant’s answers may be open to criticism, as the Respondent has argued, this should not and does not, in the Tribunal’s view, reflect badly or at all on the Applicant and on the credibility and acceptability of her evidence.

38. It is relevant at this juncture to note that some criticism was originally made of the Applicant pursuing a ‘second job’ as a marriage celebrant. Nothing on the evidence, in the Tribunal's opinion, turns on this. That evidence, in the Tribunal’s opinion, does not disclose that this activity in any way contributed to DQT or the continuation of it which the Tribunal accepts was suffered by the Applicant.

    Evidence relating to the Applicant’s claim

39. The Tribunal is satisfied that the symptoms disclosed to the Applicant’s General Practitioner on 3 August 2018 disclose the presence of DQT. Furthermore, that condition, the Tribunal concludes, was directly related to the Applicant’s work including the lifting of parcels and the use of a stapler even though by that stage the Applicant had been placed on a form of restricted duties including not lifting any more than 2 kilogram weights.

40. Dr McGill opined on 12 September 2018 that:

    ‘the occurrence of two different tendon sheath problems within a short period suggests that she has a constitutional disposition to tenosynovitis. I think it is reasonable to conclude that her work duties probably contributed to the extensor carpi ulnaris tenosynovitis that she experienced in April 2018… I cannot relate her mild bilateral De Quervain’s tenosynovitis to her work duties … (which) developed when she was on restricted work duties such that one would not expect those work duties to have influenced the development of the condition’.

41. On 15 November 2018 Dr McGill said in a further report

    ‘… it is unlikely that her work was primarily responsible for the development of de Quervain’s tenosynovitis. However, noting that she was apparently doing substantially more than her recommended restrictions, I now think that her work played a significant role in her de Quervain’s tenosynovitis. Provided that revised conclusion is correct, I expect her de Quervain’s will settle with appropriate modification of her duties. Over several months, it should be possible for her to gradually return to normal duties’.

42. DQT was accepted pursuant to section 14 of the Act in the following terms: - ‘moderate aggravation of DQT on the right (wrist) and minor aggravation of de Qyervain’s tenosynovitis on the left (wrist)’.

43. On 6 March 2021, Dr McGill provided further information by way of opinion:

    ‘I agree with A/Prof Gumley that injection of the tendon sheath is appropriate treatment for people with De Quervain’s tenosynovitis. As I do not think that tenosynovitis is a primary cause of her ongoing symptoms, the injection is not likely to have the benefit that one normally sees. Nevertheless, it is reasonable treatment and is simple and very safe. It has been recommended to her by her treating doctor and she declined. As recorded by her general practitioner in December 2019, she was “again not keen” on the suggestion of a Cortisone injection. In May 2020 she explained to her GP that she wanted to get paid out. She was experiencing “stress, nausea, loss of appetite”. The equivocal evidence of possible minor ongoing De Quervain’s tenosynovitis on one hand and the substantial psychological / motivational issues on the other, lead me to be pessimistic that physical treatment for De Quervain’s tenosynovitis, usually very effective, will provide benefit.’

44. The Applicant was also examined by Dr Ness. His ultimate opinion aligned with that of Dr McGill. The matters concerning the acceptability of the opinions expressed on various occasions by those two medical practitioners have been referred to above.

1. The Tribunal, as stated above, prefers for the reasons expressed, the opinion of Dr Gumley who saw the Applicant on one occasion for examination in 6 August 2020 and provided three reports dated 6 August 2020, 11 May 2021 and 1 July 2021.

2. On 6 August 2020, Dr Gumley diagnosed bilateral DQT, greater on the right wrist and concluded after examination that:

   ‘her wrist ranges of motion are somewhat laboured by contrast with limitations of both extension and wrist flexion bilaterally, principally limited by pain. There is some oedema in the radial side of both wrists such that the tendons of her first dorsal compartment do not stand out against the anatomical snuffbox in full thumb extension… Passive movement of her thumb CMC joints do not markedly aggravate her pain, however, she has a positive Finkelstein’s Test and the thumb extension test.’

3. In relation to causation, Dr Gumley’s opinion was to this effect:

   ‘… activities including work activity requiring repetitive wrist motion particularly from ulnar to radial deviation on a repetitive basis are those that may be causative factors to the onset of de Quervain’s synovitis. Ms Santiago has described to me in some detail the nature of her work which entails frequent and repetitive handling of parcels abd scanning, pushing trolleys, returning trolleys, etc. on a repetitive basis. She was for a period of time on restricted duties that increased her towards nominal full duties until I understand she was obliged to cease her work once her claim became finished in May of this year’.

4. The Tribunal accepts that reason which may explain the difference of opinions amongst the doctors is the findings on examination. The Tribunal does not accept that the findings made by Dr Gumley were, however, affected by attempted dishonesty on the part of the Applicant in the reporting of symptoms.

5. Although adhering to his fundamental view concerning the condition complained of by the Applicant, the Tribunal accepts as some satisfactory explanation according to Dr Gumley that an explanation for the difference of opinions amongst the doctors could be explained by the intermittent and relapsing symptoms of DQT.

6. Consistent with the Applicant’s reporting at various times, Dr Gumley was of the view that the condition was a painful one and that by removing the initial mechanical cause the condition may settle.

7. During the course of the hearing when pressed by the Tribunal, Dr Gumley’s explanation for the possible difference amongst the opinions was that:

   ‘…some of us are more frequent examiners of this condition and treaters of this condition. Rheumatologists do not typically treat this condition as often as hand surgeons do because it’s not a rheumatological problem per se.’

8. The Applicant had a consultation with her treating hand and wrist surgeon, Dr Chan, who noted in his report that the ultrasound, dated 11 March 2021, confirmed ongoing bilateral DQT and further, opined that it was a work-related injury. The Tribunal accepts this evidence. Furthermore, it is evidence that the Tribunal accepts, of the continuation of the effects of the injury from its inception in 2018.

9. As to Dr Chan’s opinion, the Tribunal prefers his opinion over those opinions of Dr McGill and Dr Ness. Dr Chan was the Applicant’s treating surgeon and further, the Tribunal accepts the submission by the Applicant’s representative that Dr Chan was in a far better position to comment on the Applicant’s condition, the cause of that condition, and whether that condition was still present and symptomatic because of the benefit of a longitudinal observation of the Applicant’s symptoms over time on account of his being her treating surgeon.

10. It is clear on the evidence that from December 2018 until the recommencement of duties on 23 July 2021, the Applicant did not work at Australia Post throughout that entire period. There was, for example, a lengthy period where the Applicant did not work at all. However, the Tribunal is satisfied that nothing that the Applicant did during that time away from work with Australia Post in any material way contributed to or exacerbated the condition which is now the subject of scrutiny by this Tribunal.

11. The Tribunal finds on the whole of the evidence that the Applicant’s condition complained of, continued continuously from 2018 and that the work which the Applicant had performed, even including the lighter duties, contributed continuously to the condition to a significant and substantial degree, and throughout that time, that was a condition which resulted from her original employment with Australia Post.

12. To use the phraseology of the Full Court of the Federal Court in Woodhouse v Comcare [2021] FCAFC 95 at paragraph 85, it is the Tribunal’s opinion that the causal nexus between the Applicant’s employment and the suffering of the disease continued unbroken from 4 December 2019 until 22 July 2021.

13. The continuing nature of the condition is supported by the evidence of Dr Gumley.

14. A collateral question to be answered in this application is the length of time during which this condition lasted and whether in fact the condition continued to endure at the time of hearing and potentially beyond.

15. There is evidence before the Tribunal that the Applicant, as at the time of hearing and beyond the date of hearing, continued to suffer from the condition DQT that the Tribunal has found to exist. However, the Applicant returned to work duties on 23 July 2021 and despite other evidence and the submissions of the Applicant’s counsel, the Tribunal is entirely satisfied that the operation of the condition from which the Applicant suffered and consequent liability by the Respondent ceased upon the Applicant returning to work on 23 July 2021.

    ORDER

16. The reviewable decision should be set aside. The Tribunal substitutes a decision that on and from 4 December 2019 to 22 July 2021, inclusive:

    (a)The Applicant continued to suffer from the accepted condition of ‘moderate aggravation of De Quervain’s tenosynovitis on the right and minor aggravation of De Quervain’s tenosynovitis on the left’;

    (b)The Applicant’s employment with the Respondent continued to significantly contribute to the Applicant’s accepted condition; and

    (c)The Respondent had a liability pursuant to subsections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of the Applicant’s accepted condition.

    COSTS

17. The Tribunal will hear submissions as to the costs unless those costs can be agreed between the parties.

I certify that the preceding 61 (sixty - one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...........................SGD.............................................

Associate

Dated: 13 December 2021

Date of hearing:	9 and 10 August 2021
Date final submissions received:	30 September 2021
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Mr J Tucker, Slater & Gordon Lawyers
Counsel for the Respondent:	Mr M Gollan
Solicitors for the Respondent:	Ms C Humphries, Australian Postal Corporation