Saunders and Telstra Corporation Limited

[2004] AATA 1359

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1359

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2002/440

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		TONI SAUNDERS

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal	Mr J.W Constance , Senior Member
Dr M.D. Miller AO, Member

Date17 December 2004

PlaceCanberra

Decision

In accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal:

1.     sets aside the decision of the respondent dated 15 November 2002; and

2.     in substitution therefore decides that:

2.1 on 2 March 2002 the applicant suffered an injury, being de    Quervain’s tenosynovitis of the left wrist, in respect of which the respondent is liable to pay compensation in accordance with the Act;

2.2  the respondent is liable to pay compensation to the applicant in respect of the cost of treatment provided by Dr Pahlow on 14 August 2002 in relation to the injury;

2.3  on 2 March 2002 the applicant suffered an injury, being an overuse repetitive strain affecting the shoulder girdle muscles bilaterally, in respect of which the respondent is liable to pay compensation in accordance with the Act;

3.     orders that the respondent pay the costs of these proceedings incurred by the applicant.

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

CATCHWORDS

COMPENSATION – whether employment materially contributed to injury – whether de Quervain’s tenosynovitis caused by applicant’s diabetes – whether employment materially contributed to shoulder strain – employment materially contributed to tenosynovitis and shoulder strain – decision set aside

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

Treloar v Australian Telecommunications Commission (1990) (1990) 26 FCR 316  

Commonwealth of Australia v Beattie (1981) ALR 369

Re Halliday and Comcare (1994) 19 AAR 431

REASONS FOR DECISION

17 December 2004	Mr J.W. Constance, Senior Member
Dr M.D. Miller AO, Member

1.      Ms Saunders is seeking a review of a decision made by Telstra rejecting her claim for compensation for “wrist tendonitis and shoulder tendonitis” on the ground that these conditions did not arise out of her employment. We have decided that this decision should be set aside and a decision that Ms Saunders is entitled to compensation for these injuries be substituted.

FACTS

2.      Unless otherwise stated findings of fact are based on the evidence of Ms Saunders.  We are satisfied as to those facts on the balance of probabilities.

3.      Ms Saunders was born on 19 February 1972 and is now 32 years of age.

4.      In February 1989 Ms Saunders commenced employment by Telstra and has remained so employed ever since.  She worked as a switchboard operator for the first 2 years and then transferred to an administrative position dealing with credit management and billing enquiries.  Since approximately 2001 Ms Saunders has also undertaken a training and coaching role.  All her duties have involved some degree of keyboard work.

5.      In November 2001 Ms Saunders began to feel soreness in her shoulders and left wrist.  At first it was a dull ache and was intermittent, depending on what she was doing at work.  In about January or February 2002 her shoulders and wrist became “quite painful”.  The pain was along the top of her shoulders and down her back to about her shoulder blades.  At the time she was involved in keyboard work which involved toggling between screens using her left thumb and index finger.

6.      On 20 August 2002 Ms Saunders completed and lodged a “Claim for Workers’ Compensation Benefits-Employee” form.[1]  She nominated the date and time of the injury/illness as 02/03/2002 and 11am.  In the claim she described the sequence of events leading to the injury/illness and the body parts affected as follows:

“I started to have pain in my left wrist + shoulders + neck whilst at my work station.”

[1] Ex. A5

7.      Question 17 on the claim form was:

“What is the injury /illness you are claiming compensation for? (You must state the condition referred to on your medical certificate (not back injury, stress, etc.)”

Ms Saunders responded “Wrist tendonitis, and shoulder tendonitis”.

8.      The medical certificate of 14 August 20021 by Dr Pahlow,[2] Ms Saunder’s general practitioner, described the injury as “L wrist tendonitis and L shoulder tendonitis”.  This certificate accompanied the claim form.  When completing the claim form Ms Saunders was assisted by her Team Leader who told her to complete the date of the injury/disease as the date on which her symptoms were worst.  This she did.

[2] Ex. A11

9.      Ms Saunders described the level of pain in her left wrist on 3 March 2002 (the day after the date nominated as the day of the injury) as “probably a 7 out of 10.”  She described the pain in each shoulder at this time as “5 out of 10”.

10.     Ms Saunders received physiotherapy treatment weekly (and on occasions more frequently) from late March 2002 until December 2002.  She first consulted Dr Pahlow concerning her wrist and shoulders on 14 August 2002.

11.     Dr Pahlow certified Ms Saunders unfit for work as a result of her condition from 23 August 2002 to 9 September 2002.[3]

[3] Ex A6, report Dr Pahlow

12.     Ms Saunders has suffered from type 1 diabetes mellitus since she was 18 months old.

THE ISSUE

13.     The issue before us is whether or not Ms Saunders suffered a compensable injury being an ailment, or aggravation of an ailment, that was contributed to in a material degree by her employment by Telstra.

DIFFERING MEDICAL OPINION

14.     In her report of 11 September 2002, Dr Pahlow stated that at that time Ms Saunders was suffering from “tendonitis affecting the left wrist and left shoulder” which was “probably due to increased typing duties from March 2002”.[4]

[4] Ex. A6

15.     Dr Rivett, a medico-legal consultant in musculoskeletal injuries, examined Ms Saunders on 12 February 2003 for the purposes of these proceedings and noted that her “…present administrative work was mainly keyboard operation and she was very busy early in 2002.”[5]  Dr Rivett’s opinion, expressed in the report, was that “there is overuse repetitive strain affecting the shoulder girdle muscles bilaterally” and that his “findings are all consistent with repetitive overuse strain and postural strain and excessive use of keyboards”.

[5] Ex. A2

16.     Dr Brook, rheumatologist, first treated Ms Saunders on 21 February 2003 when she complained of “pain in the left wrist” and “pain in the girdle region particularly the upper trapezius region on the left with troublesome symptoms related to both posture and use”.[6]  He diagnosed left de Quervain’s tenosynovitis and was of the view that “on the balance of probabilities her work contributed to the condition”.[7] He thought the “neck and girdle pain related to postural and use factors”.[8]  In his opinion Ms Saunders diabetes was not causing her neck pain, her girdle pain, or her de Quervain’s tenosynovitis.[9]  Dr Brook gave evidence and was cross-examined before us.  He maintained the opinions expressed in his reports.

[6] Ex. A3, report dated 1/7/03.

[7] Ex. A3, p.2.

[8] Ex. A3, p.1.

[9] Ex A3, p.2.

17.     Associate Professor Boyages, endocrinologist, also gave evidence on behalf of Ms Saunders.  He was aware that Ms Saunders had suffered type 1 diabetes mellitus from the age of 18 months.  He expressed the following opinion:

“There is clear evidence from the literature that longstanding diabetes mellitus is a pre-disposing factor to the development of tendonitis.  Although this lady had a pre-disposing risk, the trigger in this case must be related to the nature and duration of the work that she undertakes.  These trigger factors would act as a catalyst to accelerate the development of this disorder in this pre-disposed individual.  Therefore environmental factors would be postulated as being the factor that would have brought this injury to the fore.[10]

……………..

It is my opinion that this lady’s injuries to her arms are a result of a combination of factors.  The long duration of diabetes mellitus is a pre-disposing factor but the nature and duration of her workplace employment is a contributing factor.”[11]

[10] Ex. A1, para. 9, report 7/8/04.

[11] Ex. A1, para 13, report 7/8/04.

18.     In cross-examination Professor Boyages maintained the view set out above.  He said that if there are predisposing factors to tenosynovitis and a trigger occurs, a change in the work environment does not necessarily bring about an improvement in symptoms.

19.     Dr Wilson, consultant endocrinologist, examined Ms Saunders on behalf of Telstra on 5 March 2003.  He gave evidence and confirmed his statement in his report of 6 March 2003[12] that:

“…..I draw your attention to the enclosed publication in the American Journal of Medicine just under a year ago discussing musculoskeletal disorders of the hand and shoulder in patients with diabetes.  You will note the comment in the discussion indicating that these syndromes are four times as frequent in diabetics as non-diabetics.  There is also an association between the occurrence of these syndromes and the duration of diabetes.  This individual has been diabetic for a very long time, namely 30 years, which would increase the risk  ………This individual has particularly badly controlled diabetes which seems to be getting worse …… I would therefore conclude that her longstanding badly controlled diabetes is likely to be a factor contributing to her symptoms.”

[12] Ex. R1.

A copy of the article referred to is in evidence before us as part of the report.

20.     When asked whether he agreed with Dr Boyages’ view that the nature and duration of Ms Saunders’ workplace employment was a contributing factor to her injuries to her arms, he agreed “entirely”.

21.     Dr Whittaker, consultant rheumatologist, also examined Ms Saunders on behalf of Telstra, the first examination taking place on 23 September 2002.  A number of reports of Dr Whittaker were in evidence and he gave oral evidence.  There was a marked difference of opinion between Dr Whittaker and the other medical practitioners, including Dr Wilson.

22.     In his report of 26 September 2002[13] Dr Whittaker said;

“Her left de Quervain’s syndrome is the result of her diabetes and not the result of various work practices such as toggling between screens and computer systems using her left hand.

…..

With regard to her neck symptoms, it is likely that there is some underlying pathology such as cervical disc disease.  Premature osteoarthritis/disc degeneration is also said to be more common in diabetics of longstanding especially with poor control.  Although it is likely that the underlying condition in her neck is the result of this and not a specific work-related condition (such as RSI), I accept that the general nature of her work duties would have served to temporarily render more symptomatic this underlying condition.”

[13] Ex. R2.

He maintained this view in cross-examination.  He did not agree with Professor Boyages’ findings that there was no evidence of arthritis.

23.      Dr Whittaker was very clear in his opinion that using a keyboard (including toggling) would not aggravate the de Quervain’s condition but he did say that such activity would ‘temporarily heighten the symptoms”.  He explained that he meant by this that activity which simply highlights the pathology present is not the same as “aggravation”, which involves some “temporary or permanent change.”  He maintained that Ms Saunders’ employment was not a contributing factor to her condition.

24.     Both parties referred us to various articles supporting the opposing points of view.  It is clear that there are divergent views within the profession.

THE LAW AND ITS APPLICATION TO THE FACTS

25.     Section 14 of the Act relevantly provides for the payment of compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.  Injury is defined to include “a disease” and “disease” means:

“(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

Being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation;”

“Aggravation” “includes acceleration or recurrence”.

“Impairment” means “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”

These definitions are contained in section 4 of the Act

26.     Whilst the Act requires that to be compensable a disease must be “contributed to in a material degree by the employee’s employment”, once the link is established it is not necessary that we be satisfied that the contribution was of any particular extent.  In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 the Federal Court said:

“[I]t follows…that once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic of or condition in which the work was to be performed” and that such exposure was in truth a “contributing” factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree…In all cases the question in whether there has been a “contribution”.”

27.     Apart from Ms Saunders seeking a finding under section 16 that she is entitled to compensation for the cost of one visit to Dr Pahlow, the only decision being sought in this application is under section 14.  The only issue under that section is whether Ms Saunders suffered an injury which resulted in incapacity for work or impairment.  There is no requirement in section 14 that the incapacity or impairment lasted for any particular length of time.

28.     We are satisfied that Ms Saunders suffered from injuries to her left wrist and shoulders on 2 March 2002, being the date on which those injuries first resulted in impairment.

29.     We prefer the view of Dr Brook, Professor Boyages, Dr Rivett and Dr Wilson that Ms Saunders’ keyboard work prior to March 2002 contributed to, or at least aggravated, her condition of de Quervain’s tenosynovitis.  Although Telstra advanced considerable evidence that a diabetic is more likely than a non-diabetic to develop the disease, this does not mean that Ms Saunders’ diabetes was, on the balance of probabilities, the only or the most likely cause.

30.     Whilst Dr Whittaker denied workplace factors could have contributed to the disease he did agree that these factors could heighten the symptoms.  Even on this evidence we are satisfied that Ms Saunders suffered an injury.  In Commonwealth of Australia v Beattie (1981) ALR 369 the Federal Court considered the interpretation of “aggravation” in the Compensation (Commonwealth Government Employees ) Act 1971.  At page 378 the Court said that “pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”  The Court said that each case must depend on its own facts.  In this case we find that the worsening of the pain on 2 March 2002 to the extent described by Ms Saunders constituted an aggravation of the de Quervain’s tenosynovitis.

31.     The medical evidence before us concentrated on the issues relating to the diagnosis of de Quervain’s disease and was limited in relation to the problems Ms Saunders has experienced with her shoulders.  However on the basis of the evidence of Ms Saunders, Dr Rivett[14] and Dr Brook[15], which we accept, we are satisfied that as at 2 March 2002 Ms Saunders suffered an overuse repetitive strain affecting the shoulder girdle muscles bilaterally. 

[14] See paragraph 13 above.

[15] See paragraph 14 above.

32.     The relevant provisions of section 14 require that an injury results in incapacity for work or impairment before compensation is payable.  We are satisfied that both the de Quervain’s disease and the repetitive strain resulted in impairment.  Ms Saunders has given evidence that she suffered quite strong pain in her left wrist and her shoulders.  Applying the definition of “impairment” set out above we are of the view that the experiencing of this degree of pain amounted to a malfunction of the left wrist and the shoulders.

33.     We find support for this view in the Tribunal’s consideration of the meaning of “malfunction” in Re Halliday and Comcare (1994) 19 AAR 431 at 441:

“There does not appear to be any significant discrepancy between the various dictionaries as to the meanings of the words “damage” and “malfunction”.  In the context of the definition of “impairment” in which those words are used and in the context of the whole Act, there seems to be no reason why we should not adopt the ordinary meaning of those words.  Consequently, there will be an impairment of a part of the body or a bodily system if it has been damaged in the sense that its usefulness or value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly.  We do not consider that  we should “read down” the definition of an impairment so that it refers only to those limitations set out in the Guide.”

34.     In any event Ms Saunders took sick leave from 3 August 2002 until 14 August 2002 and was certified as unfit for work during that period by Dr Pahlow[16] on the basis of her diagnosis of wrist and shoulder tendonitis.  Even if we are wrong in deciding that incapacity was established in March 2002 we decide in the alternative that the injuries resulted in incapacity for work on 3 August 2002.

[16] Ex. A11.

35.     It appears that the only claim for compensation for medical expenses made by Ms Saunders is for the cost of the visit to Dr Pahlow on 14 August 2002.  A copy of the invoice for $40.00 is exhibit A20.  The respondent did not raise any objection to this claim.  We find that this visit was for treatment which it was reasonable for Ms Saunders to obtain and thus compensation is payable under section 16 of the Act.

DECISION

36.     On 2 March 2002 Ms Saunders suffered an injury, being de Quervain’s tenosynovitis of the left wrist, in respect of which Telstra is liable to pay compensation in accordance with the Act.

37.     Telstra is liable to pay compensation to Ms Saunders in respect of the cost of treatment provided by Dr Pahlow on 14 August 2002 in relation to the injury.

38.     On 2 March 2002 Ms Saunders suffered an injury, being an overuse repetitive strain affecting the shoulder girdle muscles bilaterally, in respect of which Telstra is liable to pay compensation in accordance with the Act.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         .....................................................................................
  Associate (Chelsey Bell)

Date/s of Hearing  24-26 November 2004
Date of Decision  17 December 2004
Counsel for the Applicant         Mr D. Richards
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Mr B. Kelly
Solicitor for the Respondent     Sparke Helmore