SFDG and Comcare (Compensation) - [2020] AATA 3197

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 3197
Decision Date: 27 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a claim for compensation brought by SFDG (the Applicant) against Comcare (the Respondent). The Applicant sought compensation for a condition affecting her neck, shoulder, right arm, and hand, which she claimed arose from her employment. The Respondent had previously determined no liability for compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), a decision that was under review.

The core legal issues before the Tribunal were to determine the correct diagnosis of the Applicant's condition, whether that condition constituted an "injury" (other than a disease) or a "disease" for the purposes of the SRC Act, and whether the Applicant's employment contributed to the onset of her condition to a significant degree. The Applicant's reported symptoms included chest pain, neck pain, shoulder pain, and tingly fingers, which she first noticed on 28 February 2018.

The Tribunal's reasoning focused on the medical evidence presented. It noted that while the Applicant experienced symptoms in the workplace, the central dispute revolved around the diagnosis and pathology of her condition. The Tribunal found that the Applicant had not presented specialist evidence to support her claim, relying primarily on her general practitioner's opinion, which the Tribunal considered less authoritative than that of an occupational physician, Dr Forbes. The Tribunal accepted Dr Forbes's evidence regarding the diagnosis and causation of conditions such as de Quervain's tenosynovitis and carpal tunnel syndrome. Crucially, the Tribunal accepted Dr Forbes's diagnosis of the Applicant's condition as lateral extensor tendinopathy. The Tribunal further accepted Dr Forbes's evidence that this condition is degenerative and idiopathic, meaning it arises spontaneously with no known cause. Consequently, the Tribunal concluded that the Applicant's lateral extensor tendinopathy should be considered a disease, and that the Applicant's employment did not contribute to its onset to a significant degree, nor did it arise from a particular event or injury.

Based on this reasoning, the Tribunal found that the Applicant's lateral extensor tendinopathy ailment was not an "injury" for the purposes of sections 5A or 5B of the SRC Act. Accordingly, the Tribunal affirmed the reviewable decision, holding that the Applicant did not suffer an injury in relation to her diagnosed condition, and therefore no liability for compensation arose under section 14 of the SRC Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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).EVIDENCEEvidence 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.