SFDG and Comcare (Compensation)

SFDG and Comcare (Compensation) [2020] AATA 3197 (27 August 2020)
Division:GENERAL DIVISION
File Number:2018/6120
Re:SFDG
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:27 August 2020
Place:Brisbane

The Tribunal affirms the decision under review.
.................[SGD]................................................
Member D Mitchell
CATCHWORDS
COMPENSATION – claimed conditions of de Quervain’s tenosynovitis/possible carpal tunnel – what is correct diagnosis of condition – whether condition is an injury (other than a disease) or disease – whether the Applicant’s employment contributed, to a significant degree, to the onset of the Applicant’s condition – where Respondent determined no liability for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation [1998] FCA 335
REASONS FOR DECISION
Member D Mitchell
27 August 2020
INTRODUCTION

SFDG (the Applicant) is seeking review of a decision of the Respondent dated 20 August 2018.[1]
[1] Exhibit 1, T Documents, T23.2, pages 204-205, Reviewable Decision.
The reviewable decision[2] affirmed a determination dated 4 July 2018[3] that there was no liability to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of the Applicant’s claimed condition of ‘confirmed quervain’s tenosynovitis/possible carpal tunnel’ of her ‘neck, shoulder, right arm and hand’ (the claimed condition) said to have been first noticed on 28 February 2018.[4]
[2]     Exhibit 1, T Documents, T23.2, pages 204-205, Reviewable Decision.
[3]     Exhibit 1, T Documents, T19.2, pages 166-167, Determination Decision.
[4]     Exhibit 1, T Documents, T23.1, pages 197-203, Recommendation to Affirm Determination dated 4 July 2018.
BACKGROUND AND CLAIMS HISTORY
The Applicant commenced full time employment with the Department of Human Services (DHS) in June 2001. Between September 2013 and July 2014, the Applicant reduced her hours of work to 16 hours per week. The Applicant’s working hours increased to 24 hours per week from July 2014 and further to 25 hours per week (working three full days a week) from the end of September 2017.[5]
[5] Exhibit 10, Respondent’s Hearing Bundle, R7, page 2, paragraph 4.1, Statement of Issues, Facts and Contentions dated 30 January 2020.
On 7 March 2018, the Applicant reported to her employer that on 28 February 2018 she experienced chest pain (right), neck pain, should pain (right) and tingly fingers.[6] The Applicant stated in response to how was the injury sustained:[7]
Unsure of how injury sustained as complete usual duties, current work environ has been very cold and temperatures fluctuating.
[6] Exhibit 1, T Documents, T10.F, pages 109-110, Incident Report.
[7] Exhibit 1, T Documents, T10.F, page 109, Incident Report.
Early intervention measures were undertaken which included an ergonomic assessment, a workstation assessment and provision of funding for 6 sessions of physiotherapy.[8]
[8] Exhibit 1, T Documents, T10 pages 78-81, Employer Statement in Response to section 71 Request and enclosures set out in Annexures T10.A – T10.J, pages 82-125.
On 13 March 2018, the Applicant underwent an ultrasound and x-ray of her right wrist and shoulder. In a report of the same date, Dr Ben Jacob indicated that the ultrasound of the Applicant’s right shoulder and x-rays of her right wrist and shoulder were normal.[9] In relation to the ultrasound of the Applicant’s right wrist Dr Jacob provided the following impression:[10]
Findings are in keeping with clinical suspicion of de Quervain’s tenosynovitis. Ultrasound can be used to guide corticosteroid injection into the tendon compartment to treat this condition.
[9] Exhibit 4, Evidence filed by the Applicant on 24 April 2019, Ultrasound and X-ray report dated 13 March 2018.
[10] Exhibit 4, Evidence filed by the Applicant on 24 April 2019, Ultrasound and X-ray report dated 13 March 2018.
On 15 March 2018, Dr Gliceria Aznar, general practitioner provided a medical certificate opining that the Applicant had “de Quervains tenosynovitis on the right wrist” and advising that she had been prescribed a Cortisone injection and that physiotherapy was recommended.[11]
[11] Exhibit 1, T Documents, T3.3, page 54, Medical Certificate.
On 22 March 2018, the Applicant attended a physiotherapy appointment with Mr Trevor Myers of Physio Physiotherapy[12] who stated in a letter that:[13]
[The Applicant] attended physiotherapy today for treatment of her R thumb/wrist. She reports pain worsening as the day progresses and aggravated with using a mouse for a couple of hours, holding steering wheel, using her phone and remote and with cold weather/air con.
…..
Diagnosis is muscular overuse and De Quervain’s. Treatment will work on activity modification, pain-free AROM and deep tissue work.
[12] Exhibit 1, T Documents, T3.4 – page 55, Provider Management Plan.
[13] Exhibit 1, T Documents, T3.2, page 53, Letter from Trevor Myers to Dr Gliceria Aznar.
On 3 May 2018, Dr Swati Sharma the Applicant’s general practitioner provided a Work Capacity Certificate diagnosing confirmed de Quervain’s tenosynovitis and possible carpal tunnel right side and recommending that a nerve conduction study be performed. Dr Sharma opined that the cause of the Applicant’s condition was repetitive wrist movement from using a keyboard and mouse.[14]
[14] Exhibit 1, T Documents, T3.1, page 52, Work Capacity Certificate - workers’ compensation.
On 3 May 2018, the Applicant submitted a Workers’ Compensation Claim form providing the following information:[15]
·The condition for which she was making a claim, was confirmed quervain’s tenosynovitis/possible carpal tunnel.
·The parts of her body that were affected were her neck, shoulder, right arm and hand.
·The tasks she was doing when she was injured were “typing and mouse use as a call centre environment at centrelink”.
·In response to what happened and how was she injured: “Tingly fingers noticed prior to incident date although though it could be the cold environment but incident date when chest pains occurred and neck/shoulder pain which was also in wrist. Use of keyboard and mouse exacerbate pain”.
·She first noticed her symptoms/injury at 1.00 pm on 28 February 2018.
·She first sought treatment on 2 March 2018 from her general practitioner and physiotherapist.
·She had not ever experienced a similar symptom, injury or illness, work-related or otherwise.
·She had not previously claimed compensation through any insurer for a similar injury or condition.
[15] Exhibit 1, T Documents, T3, pages 44-49, Workers’ Compensation Claim.
On 7 May 2018, the Employer’s portion of the Workers’ Compensation Claim form was completed and provided that at the time of the injury/illness the Applicant was an APS 4 Service Officer and her main duties were telephony and processing/administrative duties.[16]
[16] Exhibit 1, T Documents, T3, pages 50-51, Workers’ Compensation Claim.
The Respondent referred the Applicant to Dr Angus Forbes, occupational physician for an independent medical examination.[17] The Applicant was examined by Dr Forbes on 8 June 2018, who prepared a report dated 27 June 2018.[18] Dr Forbes provide the following summary and assessment:[19]
[The Applicant] reported a history of “repetitive strain injury” to the right upper limb in 2009. Her symptoms resolved with four treatments of physiotherapy and an ergonomic mouse. She has developed symptoms of right upper limb discomfort in 2018. Her symptoms are fairly widespread throughout the upper limb. Today, examination was not consistent with a disorder of the cervical spine, shoulder or wrist. Examination today did not support a diagnosis of de Quervain’s tenosynovitis or carpal tunnel syndrome. I note the previous ultrasound findings of thickening in the first extensor compartment.
Clinical examination was consistent with mild lateral extensor epicondylitis. This correlates with a reported history, in particular difficulty with folding laundry, drying dishes, opening cans, pain on pronation/supination and pinching her child’s nose.
In my opinion, her condition is lateral extensor tendinopathy.
[17]    Exhibit 1, T Documents, T16, pages 142-146, Section 57 Referral to Dr Angus Forbes.
[18]    Exhibit 1, T Documents, T18, pages 150-158, Medical Report of Dr Angus Forbes.
[19]    Exhibit 1, T Documents, T18, page 154, Medical Report of Dr Angus Forbes.
In response to specific questions put to him, Dr Forbes in his report dated 27 June 2018 relevantly provided:[20]
[20] Exhibit 1, T Documents, T18, pages 155-156, Medical Report of Dr Angus Forbes.
Medical Relationship
4.Based on your assessment and the available medical information, please confirm your diagnosis/es.
Please see the "Summary and Assessment". Whilst her ultrasound report indicates findings consistent with de Quervain's tenosynovitis, these findings are of themselves not diagnostic. Clinical examination did not reveal any signs of de Quervain's tenosynovitis today. The medical records supplied do not indicate any clinical signs of de Quervain's tenosynovitis.
[The Applicant] reported very non-differentiated symptoms. On closer questioning, her symptoms are consistent with lateral extensor tendinopathy, and she has signs of this condition on clinical examination. Due to the self-limiting nature of the condition, further investigations are not required, and indeed low-level degenerative change may not be picked up on an ultrasound.
5.Please provide a description of the condition and the diagnostic criteria used in reaching your diagnosis/es.
[The Applicant’s] symptoms, on clinical examination today, were consistent with a diagnosis of lateral extensor tendinopathy. She has no signs, on clinical examination, of either de Quervain's tenosynovitis or carpal tunnel syndrome.
6.Provide the causative factors for these diagnoses including the progression of the condition/s (Please include clinical signs and symptoms that support your diagnoses.)
Whilst lateral extensor tendinopathy is frequently assumed to be an overuse condition, it is in fact a degenerative condition. It may be associated with a combination of both high force and high frequency repetition. There is insufficient evidence to support the activities required in an administrative position as being causal'.
7.Is the proposed diagnosis/es and symptomology consistent with the mechanism of the condition described by [the Applicant]? Please explain
The work capacity certificate stated that repetitive wrist movement whilst using the keyboard and mouse is the cause of her symptoms. This mechanism is not supported by the medical evidence.
8.Is the proposed diagnosis/es and symptomology consistent with the mechanism of the condition in the medical literature for causality? Please explain.
Please see the answer to Question 7.
Employment Relationship
9.In your opinion, has [the Applicant’s] employment contributed to, to a significant degree, to the causation of her diagnosis? If yes, please detail.
Medical evidence does not support the type of work that [the Applicant] performs as an occupational risk factor for lateral extensor tendinopathy. The condition is idiopathic. The symptoms are unlikely to significantly impact on her ability to work.
10.[The Applicant’s] is claiming compensation for carpal tunnel syndrome (right) as a result of typing. Did these factors, significantly cause and contribute to [the Applicant’s] claimed condition? If so, are these factors still contributing to her claimed condition? Please provide specific details in respect of the contribution they are having on her condition?
Her symptoms are not consistent with carpal tunnel syndrome. She reported pins and needles radiating in the ulnar nerve distribution, rather than a median nerve distribution. Clinical testing for carpal tunnel syndrome is negative. Symptoms and examination were consistent with a lateral extensor tendinopathy. She has not had nerve conduction studies, however, on their own these are not usually considered to be diagnostic.
11.In your opinion, what are the significant contributory factors (employment and non-employment) which have contributed to [the Applicant’s] claimed condition? Please include in your answer
a) Specific details in respect of each of the relevant factors
b)The level of contribution these factors had on [the Applicant’s] condition
Please see the answers above. The condition in [the Applicant] is idiopathic.
By determination dated 4 July 2018, the Respondent denied the Applicant’s claim for compensation.[21]
[21] Exhibit 1, T Documents, T19.2, pages 166-167, Determination.
The Applicant underwent an x-ray and ultrasound of her right elbow on 16 July 2018. In a report of the same date, Dr Jacob provided that the cause of symptoms were not demonstrated on the current imaging.[22] The imaging was essentially normal.
[22] Exhibit 1, T Documents, T20, page 174, X-ray and Ultrasound Report of Dr Ben Jacob.
The Applicant underwent a nerve conduction study on 19 July 2018. In a report of the same date, Dr Ventzi Bonev provided:[23]
Summary of Neurophysiological Findings:
Mild right carpal tunnel conduction delay
Normal right ulnar sensory nerve-conduction velocities
Normal right median F-wave responses
Normal axillary compound motor action potentials bilaterally.
While [the Applicant] has electrical and clinical evidence of a right carpal tunnel conduction delay, her main current clinical symptoms are musculo-skeletal in aetiology, relating to right lateral humeral epicondylitis and right shoulder joint pains
Conservative right carpal tunnel management, as the related symptoms are relatively mild at present. The AAOS (American Academy and Association of Orthopaedic Surgeons) recommend local steroid injection and/or splinting as the best validated conservative treatments.
[23] Exhibit 1, T Documents, T20, pages 169-173, Nerve Conduction Study Report of Dr Ventzi Bonev.
In a medical certificate dated 20 July 2018, Dr Sharma provided:[24]
This is to certify that I have examined [the Applicant] today with the recent X ray and US Right elbow and Nerve conduction studies. The Scans are normal and NCT has shown mild carpal tunnel. She has been using wrist splint and following the conservative management as advised for CTS.
[24] Exhibit 1, T Documents, T20, page 168, Medical Certificate of Dr Swati Sharma.
On 23 July 2018, the Applicant requested a reconsideration of the determination,[25] providing the reports dated 16, 19 and 20 July 2018 as set out in the previous three paragraphs and stated that:[26]
Based on evidence I have obtained from my GP - DR Sharma in the form of the Nerve Conduction Study results from Dr Ventzi Bonev (Corbett Neurophysiology Services) on 19/07/2018 (report attached) with findings that testing showed electrical and clinical evidence of Mild Carpal Tunnel Syndrome including symptoms of muscular pain to the right lateral humeral epicondylitis and right shoulder joint pains.
Comcare's decision to accept that there was no clinical evidence to support my claims of work related injury I request be further reviewed due to the attached evidence together with the medical certificate provided by my doctor dated 20/07/2018 confirming results and treatment.
I know this to be a work related injury as I have held employment with the Department of Human Services since 04 June 2001 where my duties have primarily required high volume data entry and frequent mouse use being consistent work of a repetitive nature. I do not participate in any hobbies or activities outside of work which I believe have contributed to this injury.
I have a previous recorded work related injury of the same right arm (This was considered RSI or the right arm) whilst located at Ipswich Service Centre approximately 10 years ago whilst and Administrative Support Officer in Assessment Services which rectified with early intervention. I believe this shows evidence of a previous injury recognised by my employer sustained due to the repetitive nature of the working environment.
[25] Exhibit 1, T Documents, T21, pages 175-176, Request for reconsideration.
[26] Exhibit 1, T Documents, T21, page 176, Request for reconsideration.
On 20 August 2018, the reconsideration delegate affirmed the determination which denied liability under section 14 of the SRC Act for lateral extensor tendinopathy or aggravation thereof[27] for the reasons set out in the recommendation report.[28] The Respondent did not accept that there was an ailment which was contributed to, to a significant degree, by Commonwealth employment.[29]
[27]    Exhibit 1, T Documents, T23.2, pages 204-205, Reviewable Decision.
[28]    Exhibit 1, T Documents, T23.1, pages 197-203, Recommendation to Affirm Determination dated 4 July 2018.
[29]    Exhibit 1, T Documents, T2, page 43, Section 37 Statement.
In a medical certificate dated 29 August 2018, Dr Sharma provided:[30]
…..
The NCT showed carpal tunnel.
There were some symptoms s/o tennis elbow but imaging was normal.
After discussing with [the Applicant] I consulted our radiologist and we decided to trial steroid injection for carpal tunnel. [The Applicant] proceeded with the injection with great results. Considering the improvement with steroid injection, I am of the opinion that carpal tunnel syndrome was causing a lot of [the Applicant’s] symptoms in the hand.
Her work involves her using her wrist a lot which is a big contributing factor to De Quervains and CTS.
[30] Exhibit 1, T Documents, T1, page 41, Medical Certificate of Dr Swati Sharma.
On 23 October 2018, the Applicant sought review of the reconsideration decision by way of application to this Tribunal.[31]
[31] Exhibit 1, T Documents, T1, pages 1-42, Application for Review of Decision and attachments.
A Hearing was held by telephone on 7 July 2020. The Applicant was self-represented and gave evidence under affirmation. The Respondent was represented by Ms Kate Slack of Counsel.
ISSUES
The primary issue before the Tribunal is whether the Applicant is entitled to compensation under section 14 of the SRC Act in relation to the claimed condition.
In considering this issue, the Tribunal must consider:
1.what is the correct diagnosis of the Applicant’s claimed condition; and
2.whether the Applicant’s claimed condition is an injury as defined by section 5A of the SRC Act.
THE LAW
Section 14 of the SRC Act deals with compensation for injuries and relevantly provides:
(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.
Section 5A of the SRC Act defines “injury” to mean:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B of the SRC Act defines “disease” to mean:
(1)In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.

Section 4 of the SRC Act defines ailment as any physical or mental ailment, disorder, effect or morbid condition (whether of sudden onset or gradual development).
EVIDENCE
Evidence of the Applicant
The Applicant provided an undated witness statement on 29 September 2019.[32] In this statement the Applicant provided details of her work and symptoms in the months prior to 28 February 2018. The Applicant outlined that the nature of her work had changed and that there was an office refit in the 12 months prior and many complaints were made about the air conditioning being too cold.
[32] Exhibit 9, Applicant’s Witness Statement filed on 23 October 2019.
The Applicant provided the following:[33]
…
h.Were there any other factors at work that could account for your elbow injury? Yes, Aggravation by addition movements required back and forth from the mouse to the keyboard, the cold air-conditioning temperature may have impacted as due to extreme cold my body would be tensed and unable to get warm. These conditions were sustained for a prolonged period of 6 or more months.
i.Describe your symptoms in the months prior to 28 February 2018 (i.e. type of symptom, location and intensity of symptoms, frequency or duration of symptom)
I had experienced aches in my right arm / shoulder and tightness in my right hand which was intermittent and varied in severity with increasing to severe pain in my right arm and hand after a work shift of 8am-5pm. As my condition progressed, I would experience pain after a couple of hours of mouse and keyboard use at work where it is at this stage that my symptoms also impacted me at home with washing dishes (drying them), folding washing and driving home from work.
j.Describe your current symptoms? My current symptoms are that I do not experience any pain or discomfort doing home chores or driving. I have noticed that when I have attended work for a 3 hours shift recently and alternating between the keyboard and mouse for that time completing learning and development modules and selecting emails that I have noticed tightness in my hand by the end of that shift and a slight pain in the right elbow area.
k.Provide any other information related to your work situation that you consider relevant to your claim. Since my injury notification to my employer I have for other reasons had leave from work which has included extended leave periods where I have experienced no pain or issues with my right upper limb at home or driving which shows me that the, aggravation and injury I experience relate directly to my duties when using the keyboard and mouse and my duties require.
I have implemented all recommendations to improve conditions both in the workplace and minimalising any impact personally. I have an ergonomic keyboard, Mouse and had a workplace health and safety screen and desk assessment completed which I adhere to. I have had discussions with leadership about alternatives which I was advised there are assisted technology programs such as dragon that could assist in the future to reduce key stroke and mouse use.
[33] Exhibit 9, Applicant’s Witness Statement filed on 23 October 2019.
At Hearing the Applicant told the Tribunal that:[34]
·She believes that the Respondent’s decision is wrong and that if her condition is not considered to be an injury it should be considered an aggravation of the diagnosed injury by Dr Forbes on the basis that the number of key strokes and mouse use had changed considerably to what they were previously doing. It was not the number of customers that changed but the screens and shortcuts changed so she used her right arm more frequently.
·The air conditioning was an issue and most staff were wearing three layers of clothes, using blankets and hot water bottles.
·“Our bodies were completely tense because they were so cold and when you are sitting there tense and using the mouse it has impact on your body and your muscles.” Ms Pomeroy confirmed that issues with the air conditioning had been reported. Dr Forges said it was a muscular condition.
·She relies on the specialist evidence from the nerve conduction study that said mild carpal tunnel syndrome and also the fact that since she had not been performing her administrative duties she had not had any exacerbation of the muscular issues at home or driving that she did have after eight hour long work days.
·In relation to the diagnosis made by Dr Forbes, that she is not a medical professional, she agrees with her doctor and followed their guidance, and she would be asking Dr Forbes at the Hearing about the diagnosis.
·In relation to whether she considers her condition to be an injury or an ailment and whether something actually caused her pain to occur or was it something that happened progressively:
As I have previously reported to the Department of Human Services back in 2018, I had a right upper limb strain that actually was corrected with early intervention treatment. I do believe that there has been like a progressive occurrence from doing those duties over a long period of time. I know I was part-time at the time that this came about but I had been full time for a very long period prior to that and I do believe that the air conditioning was an additional factor that had caused that tension within my body whilst performing my task.
[34] Transcript, pages 7-8.
On cross-examination, the Applicant told the Tribunal:[35]
[35]    Transcript, pages 9-16.
·That the beginning of 2018 was when there was a heightened period of pain that was impacting on her work and this was when she had to go to the doctor.
·It was the typing and mouse work that caused the aggravation with the additional factor in February 2018 of the air conditioning making it worse.
·That the note in her Patient Medical History made on 9 March 2018[36] (found at ST1) was correct in saying that she was experiencing right arm pain, felt weak pain for movements and hurt to do her hair, hooking and unhooking her bra.
[36]    Found at Exhibit 2, Supplementary T Documents, ST1, pages 1-3, Extract of records received from Idameneo (No 123) Pty Limited.
·That these pain symptoms occurred after she had, had long work days as she would be sore after the work day. When referred to the doctors notes not stating that she was only experiencing these symptoms after a long work day, she says that she had always said that to the doctor.
·She felt the muscle fatigue after work in the initial stages after she had been typing and using the mouse all day, so when she came home she felt pain.
·That she started to see a physiotherapist and that in March 2018 she reported to him that she experienced symptoms when it was cold, when she was using the mouse for a couple of hours, when she was holding a steering wheel, when she was using a remote and a phone.
·That she had expressed to the physiotherapist that these symptoms were after the long work day.
·She only experienced these symptoms after a long work day as after she had her day off in between she would go back to work and would be recovered from that long work day but within a couple of hours of being at work she would start to feel the symptoms again.
·Initially her pain symptoms would have taken half a day or three quarters of a day at work to start, however by the end it was actually beginning within an hour or two.
·Her symptoms would completely ease overnight.
·When asked if when she would wake up in the morning if the symptoms would be gone, that the symptoms would be slow, so in the morning she may still have a dull ache but once she got started at home then they would not be there.
·When asked if she was saying that from January 2018 to May 2019[37] was she experiencing pain symptoms every day, that she did not experience the symptoms every day because she had her weekends. She said that after working on a Friday she would find in the afternoon and evening she would have severe pain from the exacerbation because of the hours she had worked. By the time she had slept and woken up, by mid-morning the pain had subsided considerably because she was not doing what she believes had been impacting on her right arm. She did not notice the symptoms over her weekend, they were considerably reduced.
[37]    It was noted that the Applicant ceased work in May 2019.
·She did not cease work due to her pain symptoms because she always maintained her work ethic, to maintain her stats for work.
·Prior to lodging her claim for compensation, she had some early intervention support from Comcare. She said at that stage she was experiencing difficulties with household tasks and washing after she came home from work. She said she did not do these things in the morning.
·She had told her physiotherapist that she experienced pain folding washing, drying dishes and driving. She said it was driving home from work, driving to work she did not experience pain.
·When taken to an email she had sent to her rehabilitation case manager[38] dated 18 June 2018 where she had said she was experiencing pain during her sleep and that her sleep was significantly disrupted as a result and asked if that was correct, that it was correct, that the pain was still there on those evenings after work, it would not subside until when she work up or even mid-morning.
·When referred to in the same email where she added to the having previously reported that she had difficulty in performing tasks that require forceful gripping such as using a can opener and opening jars that:[39]
I also advised that drying wet dishes with the grip is an issue and folding clothes and using the pinching function on my right hand proves difficult as noted when assisting my son with a bleeding nose.
and it was pointed out that she does not say that these issues only arose at the end of a work day, that she did not state that but that is the actual fact that they were always after a work day shift.
·She acknowledged that in the material before the Tribunal she did not say that all of her difficulties happened at home only after work, she said she was not aware that needed to be stipulated.
·When taken to an incident report relating to an incident that occurred on 11 July 2018 and was reported by the Applicant on 13 July 2018 and asked if she accepts that she had been reporting that her pain symptoms were associated with the cold work environment in that document, that she was stating that there had been increased pain due to the air conditioning, it was very cold. When asked to confirm that there was no mention of there being pain symptoms associated with repetitive mouse use or typing, that she had already reported that to her team leader, what she was doing was letting her employer know that the cold environment was affecting her even more.
·That when she was referred to Dr Forbes that she understood that she was seeing him as an expert medico-legal assessor and that he would be giving an independent opinion.
·She understood that when she saw Dr Forbes it was important that she told him the truth and to be accurate about the type of symptoms she was experiencing and when she was experiencing them.
·She had not told Dr Forbes that when she reported that she avoided folding the laundry and drying the dishes, that she had reduced chopping of vegetables and was unable to use a can opener as the twisting action was too painful, that this was when she got home from work and was in too much pain, because he had not asked – the questions she was asked were closed questions.
·She did experience pain symptoms when she was doing tasks like folding the washing, drying the dishes, chopping hard vegetables, using a can opener, pinching her child’s nose when it bled, all in the evenings.
[38]    Found at: Exhibit 1, T Documents, T17, page 147, Email Chain – Agency to Applicant.
[39]    Found at: Exhibit 1, T Documents, T17, page 147, Email Chain – Agency to Applicant.
Statement of Colleen Pomeroy
In a statement dated 15 November 2019, Ms Colleen Pomeroy, the Applicant’s line manager from October 2017 to August 2018 provided that the Applicant’s normal duties during that time involved working at a desk with a keyboard, computer mouse and monitors on the desk. She provided that the Applicant would respond to phone calls using a headset and the mouse and keyboard to input information into the computer.[40]
[40] Exhibit 10, Respondent’s Hearing Bundle, R4, page 18, Witness Statement of Ms Colleen Pomeroy.
Ms Pomeroy said that her recollection was that prior to 28 February 2018 the software used on the computer did not change and the keyboard, mouse and expected rate of work did not alter, the only changes to the Applicant’s work occurred in line with legislative changes that came into effect on 1 July 2018.[41]
[41] Exhibit 10, Respondent’s Hearing Bundle, R4, page 19, Witness Statement of Ms Colleen Pomeroy.
Ms Pomeroy recalled that there were issues with the air conditioning being too cold following the team’s relocation however they were closely monitored.[42]
[42] Exhibit 10, Respondent’s Hearing Bundle, R4, page 19, Witness Statement of Ms Colleen Pomeroy.
Ms Pomeroy was not asked to provide evidence at Hearing as the Applicant indicated that she did not want to cross examine her.
Medical Evidence
Evidence of Dr Swati Sharma
The relevant medical certificates provided by Dr Sharma are set out above under the Background and Claims History. At Hearing Dr Sharma gave evidence by telephone, under affirmation.
At Hearing Dr Sharma:[43]
[43] Transcript, pages 19-23.
·Confirmed she is a general practitioner and does not hold specialist qualifications as an orthopaedic surgeon or occupational physician.
·Confirmed that in general practice part of her role is to refer patients to doctors who have particular expertise in areas that require further investigation.
·Agreed that in formulating her opinion on diagnosis of the Applicant’s condition that she relied on the results from the nerve conduction study, the Applicant’s report of positive results from the steroid injection and her examination.
·Said she examined the Applicant for the carpal tunnel syndrome condition on 2, 6 and 9 March 2018.
·Said she had not performed the Finkelstien, Maudsley, Cozen, Durkan or Phalen tests, as none of these were documented.
·Said she had not seen the reports of Dr Forbes.
·When asked if as Dr Forbes is an occupational physician, being a specialist in his field would she ordinarily defer to an expert with respect to diagnosis and causation, when they have been specifically tasked to examine a person to look at those two issues, said yes, she would go by the specialist opinion.
·When asked if when in her report dated 29 August 2018 she said “Her work involves her using her wrist a lot, which is a big contributing factor to CTS” she had referred to any peer review literature or her own experience with treating the condition to support her opinion, said that no she had not quoted it.
·Said that the report of 29 August 2018 was done for the Applicant in support of her claim however was not a report where she was being asked questions and then required to give details and outline everything.
·When asked if then in those circumstances she would defer to the opinion of an occupational physician who has been briefed with all of the material, has performed an examination, has reviewed all of the radiology reports and has the expertise, she confirmed she would.
Evidence of Dr Angus Forbes
In addition to the report dated 27 June 2018 discussed previously in this decision, having been provided with further material[44] Dr Forbes also provided two supplementary reports dated 30 May 2019[45] and 3 December 2019.[46]
[44]    Exhibit 10, Respondent’s Hearing Bundle, R1, pages 1-6, Briefing letter to Dr Angus Forbes and R5, pages 20-21, Briefing Letter to Dr Angus Forbes.
[45]    Exhibit 10, Respondent’s Hearing Bundle, R2, pages 7-12, Supplementary Report of Dr Angus Forbes.
[46]    Exhibit 10, Respondent’s Hearing Bundle, R6, pages 22-24, Supplementary Report of Dr Angus Forbes.
In his report of 30 May 2019, Dr Forbes provided that the additional material he had been provided did not change his diagnosis as set out in his previous report. Dr Forbes opined that the condition of lateral extensor tendinopathy is primarily a clinical diagnosis and he noted that his assessment concurs with that of neurologist Dr Bonev.[47]
[47] Exhibit 10, Respondent’s Hearing Bundle, R2, page 9, paragraph 1, Supplementary Report of Dr Angus Forbes.
In the report of 30 May 2019 in response to specific questions, Dr Forbes provided:[48]
……
Lateral extensor tendinopathy has in the past been considered to be a condition of overuse leading to inflammation. Pathological studies demonstrate a degenerative process characterised by angiofibroblastic hyperplasia. It is not caused by typing and data entry work, although the presence of the condition is likely to become more noticeable when using the arms for such a role.
……
The diagnosis of carpal tunnel can be difficult. It is identified that the history is usually the most important aspect. I note that she described symptoms that were not in a median nerve distribution when I assessed her. I acknowledge that her GP reports a significant improvement from a steroid injection to the carpal tunnel, and that would usually be considered a positive diagnostic finding. However, I have not assessed her and I am unable to comment further. A nerve conduction study demonstrating a mild conduction delay is not adequate to make the diagnosis of itself.
…….
[The Applicant] reported an array of musculoskeletal upper limb symptoms. Investigations have demonstrated minimal changes only, that would be considered normal in a significant portion of the population. The causes of both carpal tunnel syndrome and lateral extensor tendinopathy are primarily congenital. The medical evidence does not support that they are caused by data entry and typing work although they may become more noticeable when doing so.
…….
These conditions [De Quervain’s tenosynovitis and Carpal Tunnel Syndrome] are not an overuse condition, they are degenerative conditions. In the case of lateral extensor tendinopathy histological studies have demonstrated angiofibroblastic hyperplasia, a degenerative phenomenon. In the case of carpal tunnel syndrome, the majority of causes are constitutional and include the risk factors of female sex, middle age, increased body mass index and injury to the wrist. There is some evidence that occupation may be related to the onset of carpal tunnel syndrome in the setting of significant vibration or repetitive and sustained awkward wrist postures, which are not characteristically a part of administrative work.
[48] Exhibit 10, Respondent’s Hearing Bundle, R2, pages 9-10, paragraphs 2-4, Supplementary Report of Dr Angus Forbes.
In his report dated 3 December 2019, Dr Forbes in responding to the reports and research submitted by the Applicant said that the information had not changed his opinions expressed in his earlier reports and provided the following:[49]
I note that many of the supplied references are opinion pieces without supporting evidence for the cause of the condition. Some of the documents are equivocal regarding causation or do not support a link between typing and the condition.
Lateral extensor tendinopathy is a common condition in a population matched to [the Applicant] and would be expected to be symptomatic when performing typing work. High quality medical evidence demonstrates that the condition is degenerative and not inflammatory as is commonly assumed. There are identified causal links to work that is both forceful and repetitive. There is no high quality medical evidence to demonstrate a link between low force repetitive activities such as typing and mouse use, and the development of the condition. Indeed, there is some evidence that such tasks may be protective. There are associations with diabetes, smoking, female gender, poor psychological wellbeing and being in the 5th and 6th decades of life. [the Applicant] is female and her GP records report an elevated BMI of 38 (class II obesity) in 2013, and a diagnosis of depression / anxiety.
[49] Exhibit 10, Respondent’s Hearing Bundle, R6, page 23, Supplementary Report of Dr Angus Forbes.

In the report dated 3 December 2019, in response to specific questions relating to the Applicant’s lateral extensor tendinopathy condition and the impact of her work, Dr Forbes provided:[50]
[50]    Exhibit 10, Respondent’s Hearing Bundle, R6, pages 23-24, paragraph 2.2, Supplementary Report of Dr Angus Forbes.
2.2      Specifically,
a)In your opinion did the Applicant suffer an aggravation, exacerbation or increase in the symptoms of her diagnosed condition of ‘lateral extensor tendinopathy’ on 7 March 2018?
Yes. She developed clinical signs of a constitutional condition that was symptomatic in the workplace due to the nature of her tasks, but for which high quality medical evidence, including cross sectional population studies and meta-analyses have not demonstrated a causal link to repetitive but low force activities such as typing.
b)If so, was that aggravation, exacerbation or increase in symptoms contributed to, in a significant degree:
(i)       By her duties at work and if so, which specific activities? Or
Repetitive typing is likely to have led to increased symptoms which would resolve when typing ceases. However, the underlying condition would still be present, but simply not symptomatic.
(ii)By the change in the Applicant’s mouse and keyboard use and/or office temperature described in paragraphs c, e and h of her statement?
There is no biologically plausible mechanism by which the temperature would have worsened her condition. There is also no high quality medical evidence to support the proposition that the reported ergonomic changes would have worsened her condition.
(iii)Why or why not?
As above.
….
At the Hearing, Dr Forbes gave evidence by telephone, under affirmation. In response to questions asked by the Respondent, Dr Forbes:[51]
[51] Transcript, pages 26-32.
·Confirmed that his qualifications as set out in his CV was correct and that he is a qualified general practitioner and occupational and environmental physician.
·Confirmed he had examined the Applicant on 8 June 2018 and provided a report dated 27 June 2018 together with supplementary reports dated 30 May 2019 and 3 December 2019 and that there were no amendments that he wanted to make to these reports.
·Confirmed that when read together the three reports accurately reflected the opinion truly held by him.
·Confirmed that his diagnosis of the Applicant’s condition is mild lateral extensor epicondylitis.
·When asked about the impression noted by Dr Jacobs in the ultrasound report dated 13 March 2018 and whether an impression in an ultrasound report is an actual diagnosis of a condition, said that if the diagnosis is a clinical diagnosis and the ultrasound is being performed to provide further information to confirm or refute that clinical diagnosis, however findings in the absence of clinical symptoms is not supportive of the condition. He said a person may be on the spectrum of heading towards getting that condition or resolving from having it, but they do not have it. If someone has no symptoms, then the findings are not relevant. By symptoms he said he means clinically relevant symptoms. So, pain in the right location and tests stressing various structures that you are looking for, which would have to be positive to make the diagnosis.
·Said an impression in a report form a radiologist is not sufficient, in the absence of other stuff it is just an impression and it may be supportive of a diagnosis but it is not diagnostic of itself.
·When referred to the Nerve Conductive Study report of Dr Bonev dated 19 July 2018 and asked when Dr Bonev refers to mild right carpal tunnel conduction delay and although he makes a different diagnosis also said that Dr Bonev’s assessment was consistent with his opinion, said that ultimately an investigation cannot make a clinical diagnosis because a clinical diagnosis of a patient would have to have symptoms for that musculoskeletal condition. He said:
So, for carpal tunnel syndrome you cannot diagnose that on a nerve conduction alone. It gives you an indication, but it’s not impossible to have quite abnormal nerve conduction studies and have completely normal function in the hand. And it’s also actually possible to have very minorly disturbed findings and really have quite significant symptoms of carpal tunnel. So, the most important aspect of diagnosing that is in the history to where people – particularly if they get their symptoms in the distribution of the median nerve – but then also the clinical findings, which is essentially, can you annoy the nerve by provocative activity? So, usually with wrist positioning and pressure over the nerve at the carpal tunnel.
So, having a nerve conduction study that just shows some minor conduction delay is not considered diagnostic, and that’s, particularly, in the presence of other upper limb symptoms, which can give you array of symptoms in the upper limb. Then, essentially, I agree with the findings of Dr Bonev, that you’ve got signs of a lateral extensor tendinopathy, or a ‘tennis elbow’ as it’s more commonly known.
·Outlined what signs would need to be present in the clinical examination for him to make a diagnosis of de Quervain’s tenosynovitis or carpal tunnel syndrome and the difference between the two.
·Explained the difference between de Quervain’s tenosynovitis, carpal tunnel syndrome and lateral extensor tendinopathy. de Quervain’s relates to tendons. Carpal tunnel syndrome relates to nerve compression of a nerve. Lateral extensor tendinopathy is a degenerative condition that occurs on the outside of the elbow.
·Confirmed that he accepts that the Applicant’s symptoms were symptomatic in the workplace.
·Confirmed that his opinion is that the Applicant is experiencing symptoms associated with the idiopathic or non-work related condition while performing some work tasks. He said: “Yes, if you have a musculoskeletal condition, if you’re not using the arm it is unlikely to be that painful, and obviously, then when you do use those muscles, that can become more symptomatic. But that’s not changing the condition, as such, it’s just using it.”
·When asked, what does he say about the applicable causative test, which is whether the Applicant’s employment – so, being those work tasks that are: one, using a mouse; two, typing; and three, cold temperatures in the workplace, below 20 degrees – is capable of contributing to a significant degree to those exacerbations or aggravations of the idiopathic condition? Said:
Yes. Look, historically a lot of upper arm use stuff has been thought to trigger these things, but the actual medical evidence doesn’t support that. And part of that history was we used to think, particularly tennis elbow, to use the common phrase, was actually an inflammatory condition. So, overuse leading to inflammation. Pathohistologically – so if you chop bits of tissue out there and put them under the microscope – there’s no inflammation. It’s a degenerative process. And actually, then when you look at well-formed, scientific studies what they’re saying is that typing, those kind of low force repetitive activities, are not associated with any increase in risk of the condition.
So, I don’t think it’s caused by typing and mouse use. However, it’s as I said, slightly more likely to be used then because you are using the hand and the wrist, so you’re likely to get some symptoms when you do that, but it should resolve as soon as you stop doing that, or shortly afterwards, without the underlying condition itself actually having changed.
·When asked if this would be consistent with someone experiencing symptoms while performing non-work related tasks as well, said exactly.
On cross-examination,[52] Dr Forbes:[53]
[52] The Tribunal notes that the Applicant had provided a set of questions she sought the Tribunal to ask Dr Forbes on her behalf, which the Tribunal did so. The Applicant also put a further question to Dr Forbes at Hearing.
[53] Transcript, pages 32-33.
·When asked whether he would consider seven hours of frequent keyboard and mouse use would significantly aggravate the condition of lateral extensor epicondylitis, said no not in his opinion. “There is some evidence to support that a combination of forceful – so, strong grip and awkward postures, particularly at the wrists – may be associated with causing that condition, but not with typing, mouse use and other light administrative-type tasks.”
·When asked what effects on a person’s body and muscles would frequently cold temperatures have, said he was not aware of any long-term effect that it is going to cause. He said in terms of changing any underlying conditional process going on in the muscles or the other soft tissues, he is not aware of any biologically plausible mechanism that could cause an effect and he is not aware of any evidence that shows that it does.
·When asked whether a cold office environment significantly aggravate the condition he has diagnosed, said not in his opinion.
·When asked if given the Applicant has reported that post a steroid injection and having not performed any administrative duties since May 2019 she has not experienced the symptoms previously reported, whether he would consider that as the symptoms have subsided, that during the period that the Applicant was performing her work duties that there was a significant aggravation of the condition diagnosed by him, said:
No, because it’s a condition that we know usually resolves itself anywhere between six months to two years. So, around that year mark most patients are actually significantly improved or better, regardless of whether they changed their activities or have any treatment.
·When asked if as the condition he diagnosed is also referred to as ‘tennis elbow’ and may also be referred to as ‘mouse elbow’ could mouse use be a part of the condition, said:
Yes, I think as I stated before, really, the condition may become symptomatic when you’re using that right upper limb for tasks where the condition itself is. There’s no evidence to support that it is caused or materially changed by mouse use. And it’s much the same as tennis. The vast majority of tennis players don’t get it, and the vast majority of people who do have it don’t play tennis. It’s just what it is called. In German literature, it use to be called ‘musician’s elbow’, I think. And that’s just the history of the condition. But the medical evidence, as I say, does not support that.
Applicant’s Contentions
The Applicant contends that the Respondent’s decision is wrong and that her pain symptoms are an aggravation of her condition caused by her use of her keyboard and mouse in undertaking her work duties which were also exacerbated by the cold temperatures being experienced in the office.
The Applicant sought to rely upon the opinion of Dr Sharma and the reports of Dr Jacob and Dr Bonev.
Respondent’s Contentions
The Respondent contended that the correct diagnosis of the Applicant’s condition is lateral extensor tendinopathy, relying on the opinion of Dr Forbes.[54] The Respondent contended that the Tribunal should prefer the diagnosis made by Dr Forbes over that of Dr Sharma and which is provided on various imaging reports, noting that Dr Forbes explained that imaging and nerve conduction are not diagnostic on their own and that Dr Sharma in her evidence said she would defer to the opinion of an occupational physician.[55]
[54] Exhibit 10, Respondent’s Hearing Bundle, R7, page 29, paragraph 7.1, Respondent’s Statement of Issues, Facts and Contentions.
[55] Transcript, pages 34-35.
The Respondent contended that the Applicant’s condition is properly characterised as a disease and is to be considered under the definition of a disease in section 5B of the SRC Act.[56] The Respondent contended that even if the Applicant did suffer from de Quervain’s tenosynovitis or carpal tunnel syndrome or lateral extensor tendinopathy there is no evidence to support a finding that it should be understood to be an injury, that is something that arose out of or in the course of the Applicant’s employment.
[56] Exhibit 10, Respondent’s Hearing Bundle, R7, page 30, paragraph 7.4, Respondent’s Statement of Issues, Facts and Contentions.
The Respondent contented that the Applicant’s lateral extensor tendinopathy condition was not contributed to, to a significant degree, by her employment with the DHS for the following reasons:[57]
(a)the Applicant suffers from a pre-existing, congenital condition which is idiopathic in nature and not caused by administrative work such as typing or mouse use;
(b)the Applicant experienced symptoms related to her condition while undertaking both work and non-work related activities;
(c)the cold office temperatures prior to the date of injury were not causative of the Applicant’s condition;
(d)any changes to, or increase in mouse use, occurred after the deemed date of injury; and
(e)in any event, the changes or increase in mouse use were not causative of the Applicant’s condition.
[57] Exhibit 10, Respondent’s Hearing Bundle, R7, page 31, paragraph 7.6-7.9, Respondent’s Statement of Issues, Facts and Contentions.
The Respondent contended that they rely on the evidence provided by Dr Forbes in this respect and drew the Tribunal’s attention to the report of 30 May 2019 in which Dr Forbes says that the Applicant’s condition is not caused by typing and data entry work although the presence of the condition is likely to become more noticeable when performing such a role. He explained that there are other risk factors that are more significant like being of the female sex, of middle age, increased body mass index and injury to the wrist and points out that the Applicant has three of the four risk factors.[58]
[58] Transcript page 35.
The Respondent drew the Tribunal’s attention to the decision of the Full Federal Court in Commonwealth v Beattie (1981) 35 ALR 369 at 378 (Beattie) where Evatt and Shepard JJ said:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case, any incapacity for work arises only by reason of the pre-existing injury.
The Respondent further referred the Tribunal to the decision of Finkelstein J in Tippett v Australian Postal Corporation [1998] FCA 335 (Tippett) who after citing the above passage from Beattie said:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work, and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
The Respondent submitted that the Tribunal ought to find that the Applicant’s case falls into the first category referred to by Finkelstein J and thus that there has been no work-related aggravation, not only because of the opinion expressed by Dr Forbes but also because of the prevalence of reporting pain and symptomatology outside of work.[59]
[59] Transcript, page 37.
The Respondent contended that the Tribunal should conclude that the Applicant does not suffer from a disease being an aggravation of an underlying idiopathic or constitutional disorder and therefore does not suffer from an injury under section 5A of the SRC Act and as such the reviewable decision should be affirmed.[60]
[60] Exhibit 10, Respondent’s Hearing Bundle, R7, page 31, paragraph 7.7, Respondent’s Statement of Issues, Facts and Contentions and Transcript, page 38.
CONSIDERATION
By way of an initial observation in relation to the determination of the issues at play in this matter the Tribunal notes that there is no dispute that the Applicant has a condition that affects her right wrist and arm, did experience the pain symptoms she reported and that these symptoms were symptomatic in the workplace. This matter turns on the medical evidence in relation to diagnosis of the Applicant’s condition and the underlying pathology of that condition.
The Applicant in seeking to progress her claim for compensation, has not advanced any specialist evidence. By relying primarily on the evidence provided by her general practitioner, Dr Sharma and her medical advice having reviewed the imaging and nerve condition study reports, while not necessarily unusual has not assisted the Applicant to press her claim for compensation.
It is important from the outset to consider that the evidence provided at Hearing by Dr Sharma was that she herself would defer to a diagnosis and opinion on causation provided by a specialist, in this case Dr Forbes is an occupational physician.
Having considered the documentary medical evidence before the Tribunal and the evidence provided at Hearing by Dr Sharma and Dr Forbes the Tribunal considers that the opinion of Dr Forbes is the authoritative view. Having considered Dr Forbes evidence, the Tribunal accepts his methodology of diagnosis and causation of de Quervain’s tenosynovitis, carpal tunnel syndrome and lateral extensor tendinopathy conditions.
In considering what is the correct diagnosis of the Applicant’s condition, it becomes clear that clinical diagnosis is important as a first step and that imaging is used in conjunction or as a verification tool, rather than the situation being the other way around which appears to have occurred in Dr Sharma’s formation of her diagnosis.
The Tribunal accepts the evidence of Dr Forbes in relation to diagnosis of the Applicant’s condition as lateral extensor tendinopathy.
There is no evidence before the Tribunal that the Applicant’s lateral extensor tendinopathy condition arose as a result of a particular event or injury. The Applicant gave evidence that the symptoms came on gradually and got worse over time. Consequently, the Tribunal agrees with the Respondent’s contention that the Applicant’s lateral extensor tendinopathy should be considered as a disease. This view is consistent with Dr Forbes evidence that lateral extensor tendinopathy is a degenerative condition which is idiopathic in nature, meaning that it arises spontaneously with no known cause. As such the test in section 5B of the SRC Act applies to determining whether the Applicant has a disease for the purpose of meeting the definition of injury in section 5A of the SRC Act required for liability for compensation to be accepted under section 14 of the SRC Act.
Section 5B of the SRC Act defines disease to mean 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.
In accepting the diagnosis of lateral extensor tendinopathy, the Tribunal also accepts the evidence provided by Dr Forbes in relation to the onset and inherent idiopathic nature of the condition.
In considering whether the Applicant has suffered an ailment or an aggravation of her lateral extensor tendinopathy ailment that was contributed to, to a significant degree, by the Applicant’s employment the Tribunal notes that significant degree means a degree that is substantially more than material. Further the relevant matters that must be taken into account are set out in section 5B(2) of the SRC Act.
The Tribunal notes that Dr Forbes stated in his supplementary report dated 30 May 2019 that:[61]
Lateral extensor tendinopathy has in the past been considered to be a condition of overuse leading to inflammation. Pathological studies demonstrate a degenerative process characterised by angiofibroblastic hyperplasia. It is not caused by typing and data entry work, although the presence of the condition is likely to become more noticeable when using the arms for such a role.
[61] Exhibit 10, Respondent’s Hearing Bundle, R2, page 9, Supplementary Report of Dr Angus Forbes

Further in his supplementary report dated 3 December 2019, Dr Forbes opined that:[62]
Lateral extensor tendinopathy is a common condition in a population matched to [the Applicant]t and would be expected to be symptomatic when performing typing work. High quality medical evidence demonstrates that the condition is degenerative and not inflammatory as is commonly assumed. There are identified causal links to work that is both forceful and repetitive. There is no high quality medical evidence to demonstrate a link between low force repetitive activities such as typing and mouse use, and the development of the condition. Indeed, there is some evidence that such tasks may be protective. There are associations with diabetes, smoking, female gender, poor psychological wellbeing and being in the 5th and 6th decades of life. [The Applicant]t is female and her GP records report an elevated BMI of 38 (class II obesity) in 2013, and a diagnosis of depression / anxiety.
[62] Exhibit 10, Respondent’s Hearing Bundle, R6, page 23, Supplementary Report of Dr Angus Forbes.
As such the Tribunal, does not consider that the development or onset of the lateral extensor tendinopathy ailment was contributed to by the Applicant’s employment.
The evidence provided by Dr Forbes in relation to aggravation of the Applicant’s lateral extensor tendinopathy ailment and a relationship of causation with her employment is undisputed. Dr Sharma gave evidence that she would defer to a specialist’s opinion.
Dr Forbes in his supplementary report dated 3 December 2019 opined that the Applicant suffered an aggravation, exacerbation or increase in the symptoms of her diagnosed condition of Lateral extensor tendinopathy as she “developed clinical signs of a constitutional condition that was symptomatic in the workplace due to the nature of her tasks, but for which high quality medical evidence, including cross sectional population studies and meta-analyses have not demonstrated a causal link to repetitive but low force activities such as typing.”[63]
[63] Developed clinical signs of a constitutional condition that was symptomatic in the workplace due to the nature of her tasks, but for which high quality medical evidence, including cross sectional population studies and meta-analyses have not demonstrated a causal link to repetitive but low force activities such as typing.
However, Dr Forbes opined that that this aggravation was not contributed to in a significant degree by the Applicant’s duties at work, the change in her mouse and keyboard use or the identified office temperature issues. Dr Forbes provided the following reasons:[64]
Repetitive typing is likely to have led to increased symptoms which would resolve when typing ceases. However, the underlying condition would still be present, but simply not symptomatic.
……
There is no biologically plausible mechanism by which the temperature would have worsened her condition. There is also no high quality medical evidence to support the proposition that the reported ergonomic changes would have worsened her condition.
[64] Exhibit 10, Respondent’s Hearing Bundle, R6, pages 23-24, paragraph 2.2, Supplementary Report of Dr Angus Forbes.
Throughout the claim and review process the Applicant consistently advised that she experienced symptoms related to her condition while undertaking both work and non-work related activities. At Hearing the Applicant qualified her evidence in this regard by saying that her pain symptoms only occurred after she had, had a long work day and that her difficulties and pain experienced in completing non-work related tasks was attributable to the pain experienced at the end of a work day. This qualification was tested on cross-examination by the Respondent. In considering the evidence before it as a whole the Tribunal while appreciating that the Applicant’s symptoms in relation to her condition arose while and after she was at work, does not accept that the pain and symptomology from her condition was only caused as a result of her using her keyboard and mouse at work.
The Applicant chose not to test the evidence of Ms Pomeroy and as such the Tribunal has no reason not to place weight on her evidence, noting that Ms Pomeroy clearly provides that Applicant’s work tasks had not changed in or around the period of February 2018, but rather the changes were aligned to a legislative change that came into effect on 1 July 2018.
The Tribunal agrees with the Respondents application of the Beattie and Tippett cases and the contention of the Respondent that the Applicant’s employment was merely the setting in which the symptoms of her underlying, pre-existing, congenital condition became noticeable and caused her to be aware of the condition.
The Tribunal considers that the aggravation of the Applicant’s lateral extensor tendinopathy ailment was not contributed to, to a significant degree, by the Applicant’s employment.
As such the Tribunal finds that the Applicant does not meet the tests outlined in section 5B of the SRC Act.
Consequently, the Applicant’s lateral extensor tendinopathy ailment is not a disease for the purpose of sections 5A or 5B of the SRC Act.
CONCLUSION
For the purpose of section 14 of the SRC Act, the Tribunal finds that the Applicant did not suffer an injury in relation to her diagnosed lateral extensor tendinopathy condition.
Accordingly, the decision under review is affirmed.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of

Member D Mitchell

...........[SGD]..............................
Associate
Dated: 27 August 2020

Date of Hearing: 7 July 2020

Applicant:

Counsel for the Respondent:

By Telephone

Ms Kate Slack

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 3197

27 August 2020

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Remedies