Shatzman and Comcare
[2008] AATA 298
•14 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 298
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/82
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN SHATZMAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr P. Wilkins, MemberDate14 April 2008
PlaceCanberra
Decision The decision under review is affirmed. ..............signed................................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - previous defence-related injuries - epicondylitis - carpal tunnel syndrome - cervical spondylosis - trigger thumbs - claim for aggravation of injuries in subsequent Commonwealth employment - repetitive manual activities - increasing incapacity over time as a result of accepted injuries - injuries characterised by symptoms on certain activities - activities carried out in employment - symptoms the product of pre-existing conditions in the context of the employment - conditions not aggravated by the employment - decision affirmed
Safety, Rehabilitation and Compensation Act 1986 ss 4, 14
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Canute v Comcare [2006] HCA 47; 226 CLR 535
Martin v Australian Postal Corporation (1999) 29 AAR 420
Comcare v Etheridge [2006] FCAFC 27; (2006) 149 FCR 522
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) HCA 45; (2000) 200 CLR 286
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536
Casarotto v Australian Postal Corporation (1989) 10 AAR 191
Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Federal Broom Company Pty Ltd v Semlitch (1964) HCA 34; (1964) 110 CLR 626
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
REASONS FOR DECISION
14 April 2008 Mr S. Webb, Member
Dr P. Wilkins, Member1. Stephen Shatzman was injured while serving in the Australian Army. He suffered a number of injuries including bilateral epicondylitis and bilateral carpal tunnel syndrome. He claimed and was paid compensation, including compensation for incapacity for work, which is ongoing. Mr Shatzman left the Army in 1986. He commenced Australian Public Service employment with the Department of Veterans’ Affairs and, subsequently in 1989, with the Australian Taxation Office as a computer operator. These employments involved amounts of repetitive manual work, including the use of a keyboard. Over time Mr Shatzman experienced increasing degrees of incapacity for work, in relation to which he was paid compensation. His hours of work were progressively reduced until he was working 9 hours per week in 2004. He was sent home by his employer and was not allocated any suitable duties, but was not paid additional compensation for incapacity. In 2006 he was recalled to work and attempted a rehabilitation program. Ultimately his hours were further reduced to 6 hours per week and he was paid additional compensation for incapacity.
2. Mr Shatzman is unhappy that he was not paid additional compensation for incapacity during the period from March 2004 to January 2006, when he was sent home by his employer. His absence from work during this period was treated as leave and his accrued leave entitlements were reduced accordingly. Mr Shatzman explained that this was wrong and that his accrued leave entitlements should be restored. For this purpose he lodged a claim for compensation against Comcare on the basis that his accepted injuries were aggravated by his duties in employment by the Tax Office.[1] His claim was rejected by primary determination[2] and on reconsideration.[3] Unhappy with those decisions, Mr Shatzman applied for review by this Tribunal.[4]
[1] T20.
[2] T43.
[3] T71.
[4] T1.
3. There is no dispute that Mr Shatzman suffered from bilateral lateral and medial epicondylitis, bilateral carpal tunnel syndrome and cervical spondylosis prior to his employment by the Tax Office. It is accepted and agreed that these conditions and the left and right trigger thumbs condition were not caused by Mr Shatzman’s employment by the Tax Office.[5] Having considered the evidence, we are satisfied that is correct, and so find. Additionally, it is clear from the historical medical records that Mr Shatzman suffered from symptoms and made claims in relation to osteoarthritis of both knees, osteoarthrosis of the left ankle and aching neck and shoulders as a result of his Defence service. The contemporaneous evidence, such as it is, indicates that Mr Shatzman experienced symptoms and obtained medical treatment in relation to these injuries and conditions. The impairments had not resolved by the time Mr Shatzman commenced employment with the Tax Office.
[5] Applicant’s submissions, 27 March 2008.
4. Nor for the purposes of these proceedings is there disputation concerning the determination of Mr Shatzman’s entitlements to compensation and other benefits as a result of his compensable injuries during or arising from his Defence service. Such matters were not ventilated before us in any detail and we make no findings in relation to them. Thus, Mr Shatzman’s case proceeded with a narrow focus.
5. The issue for determination is whether or not Mr Shatzman suffered an injury in his employment by the Tax Office in relation to which Comcare is liable to pay compensation. Specifically, having regard to the matters contended for by Mr Shatzman, it is necessary to determine whether he suffered a frank injury or whether one or more of his previously existing conditions has been aggravated by his employment in the Tax Office to the extent that an injury has occurred.
6. Mr Shatzman asserts that in the course of his employment by the Tax Office he undertook repetitive manual tasks including keyboarding, cutting and crimping wires, and lifting desktop computers and monitors. He says that for many years prior to 2001 he was not provided with appropriate ergonomic facilities and equipment. In his submission, these tasks increased the severity and duration of symptoms of pain and numbness in his arms and hands, and pain in his neck. Mr Shatzman says that these symptoms increased after short periods of writing, keyboarding, cabling or lifting and did not cease immediately on cessation of each particular activity, but continued for periods of days, weeks and months thereafter. In his submission, the increase in severity and duration of symptoms is an aggravation of his previous injuries and conditions, and he suffered greater incapacity for work as a result. This, he says, was the cumulative result of a large number of ‘micro injuries’, being the repeated aggravation of symptoms, caused by the nature and conditions of his employment by the Tax Office.
7. Mr Shatzman asserts that the worsening of symptoms he experienced in the course of his employment by the Tax Office is an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1986 (‘the SRC Act’) in relation to which he is entitled to compensation (relying on Commonwealth v Beattie (1981)[6]; Tippett v Australian Postal Corporation (1998)[7]; and Australian Postal Corporation v Bessey (2001)[8]). In his submission, issues concerning the correct diagnosis of the symptoms are of no moment or importance if the increase in symptoms is related to his employment. Mr Shatzman says that the increase in symptoms is the resultant effect on his body of incidents in his employment (relying on Canute v Comcare [2006][9]) and is not the result of the progression of his previously existing conditions (citing Martin v Australian Postal Corporation (1999)[10]). He submits that the increase in symptoms is consistent with a sudden and identifiable physiological change and is within the meaning of ‘injury’ (relying on Comcare v Etheridge [2006][11], Kennedy Cleaning Services Pty Ltd v Petkoska (2000)[12] and Zickar v MGH Plastic Industries Pty Ltd (1996)[13]). To that extent, he asserts, the ‘disease’ provisions of the SRC Act do not apply.
[6] 35 ALR 369.
[7] 27 AAR 40.
[8] 32 AAR 508.
[9] HCA 47, at [10].
[10] 29 AAR 420.
[11] FCAFC 27.
[12] HCA 45.
[13] 187 CLR 310.
8. In the alternative, if the ‘disease’ provisions do apply, Mr Shatzman says that the amendments to the definition of ‘disease’ under the SRC Act that commenced on 13 April 2007, do not apply to his claim. Applying the previously existing definition of ‘disease’, Mr Shatzman asserts that the repetitive manual activities undertaken in his employment contributed in a material degree to aggravate his previously existing injuries and conditions (citing Comcare v Sahu-Kahn [2007][14]; Casarotto v Australian Postal Corporation (1989)[15]; Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967)[16]; Martin v Australian Postal Corporation (1999)[17]), and are therefore within the meaning of ‘injury’ in any event.
[14] FCA 15.
[15] 10 AAR 191.
[16] 117 CLR 19.
[17] Above n 10.
9. For reasons that will appear, we do not agree. We are not persuaded to the requisite standard of satisfaction that Mr Shatzman suffered an injury in his employment by the Tax Office in relation to which Comcare is liable to pay compensation.
10. The words ‘injury’, ‘disease’, impairment’ and ‘aggravation’ are defined at subs 4(1) of the SRC Act. The phrase ‘incapacity for work’ is explicated at subs 4(9). It is well understood that for worker’s compensation purposes an injury includes the symptoms or experience of the injury. Thus, as Finkelstein J said in Tippett v Australian Postal Corporation[18]: “If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of the employee’s employment then the employee will have suffered a compensable injury”.[19] However, a distinction is to be drawn “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”.[20] That distinction is a question of fact.
[18] (1998) 27 AAR 40.
[19] Ibid, at 44.
[20] Ibid.
11. We are reasonably satisfied that Mr Shatzman’s symptoms of pain and paraesthesia are symptoms of the conditions he suffered earlier (bilateral lateral and medial epicondylitis, bilateral carpal tunnel syndrome, bilateral trigger thumbs and cervical spondylosis) and were not the result of his activities in employment by the Tax Office. We accept that Mr Shatzman experienced these symptoms in the course of activities at work: the more he undertook repetitive manual activities, the more intense the symptoms. However the symptoms subsided again after cessation of the activity but did not resolve completely. Mr Shatzman experienced such changes in the intensity of symptoms performing many common activities, including activities of a domestic nature in and about his home, whether at work or not, in all likelihood, since at least 1984.
12. Plainly enough, and perhaps understandably, Mr Shatzman associates his symptoms with the repetitive manual activities he undertook in Tax Office employment.
13. Applying the test Finklestein J set out in Tippett’s case, if the work activity caused Mr Shatzman’s symptoms of pain or parasthaesia to worsen, that is to increase in severity or duration, thereby aggravating his previously existing conditions, the aggravation may be an injury for the purposes of the SRC Act. Considering the submissions put for Mr Shatzman, there are two aspects to determine: whether the increase in symptoms is an injury simpliciter, and if not, whether the increase in symptoms is a compensable aggravation of a previously existing disease.
injury
14. Mr Shatzman asserts that the increase in symptoms he experienced performing repetitive manual activities in employment is an injury simpliciter. In his submission, the repetitive manual activities in his Tax Office employment caused an identifiable physiological change to occur in his upper limbs, hands, thumbs and neck that was characterised by pain and paraesthesia.
15. That assertion is not made out.
16. An injury may have occurred if the normal physiological state of the body has been disturbed or a sudden or identifiable physiological change has occurred as a result of an incident, event or occurrence in the employment. It is necessary to analyse the evidence concerning the physiological changes that occurred on activity in the workplace, if any, on a fact by fact basis (see Kennedy Cleaning Services Pty Ltd v Petkoska (2000)[21]).
[21] HCA 45, at [35]-[40].
17. Dr Griffiths explained that epicondylitis is productive of “local pain referred to the proximal muscle bellies and on down the flexor or extensor aspect of the forearm, often to the wrist level” and “attempts by the body at healing the condition result in a steady infiltration of chronic inflammatory cells into the body of the tendon, instating a low grade chronic inflammatory process which continues for years, as it has in the case of [Mr Shatzman]”.[22] This explanation is broadly consistent with the evidence of Dr Warfe concerning the biomechanical nature of symptoms relating to epicondylitis. It is also consistent with the evidence of Dr Bodel and Dr McGill concerning the chronic nature of symptoms (although we note in passing that Dr McGill found no clinical signs supporting a present diagnosis of bilateral epicondylitis or carpal tunnel syndrome). Thus, on this evidence, which we accept, even though the symptoms of pain as a result of epicondylitis may be chronic and may be associated with activity, the symptoms are not the result of a sudden or identifiable physiological change, but are the result of ongoing progressive disease processes rather than a frank injury. We so find.
[22] Exhibit A3, p8.
18. Similar conclusions may be drawn in relation to carpal tunnel syndrome and trigger thumbs. Dr Warfe gave evidence that the symptoms of carpal tunnel syndrome (pain and paraesthesia in the hand and the 1st three digits) are related to “irritation of the nerve at the carpal tunnel level”.[23] Dr Bodel’s evidence is that thickening of the tendons or synovial sheaths passing through the carpal tunnel leads to trigger thumbs. Dr McGill and Dr Bodel reported that Mr Shatzman complained of bilateral upper limb and hand pain, and paraesthesia, but found no clinical evidence of carpal tunnel syndrome on examination. Both Doctors stated that further nerve conduction studies would be required to establish an objective basis for such a diagnosis. Thus, even if we accept that carpal tunnel syndrome persisted after decompression surgery in 1998 and that that syndrome and trigger thumbs may be caused by repetitive manual activities, and that is a matter of controversy, it does not follow, once either condition is operative, that any subsequent increase in characteristic symptoms of either disease is the result of a sudden or identifiable physiological change. In this case, as it appears to us, it is more likely than not that any increase in symptoms on activity was the product of ongoing disease processes that are not consistent with a sudden physiological change. It follows that any increase on activity of the symptoms of carpal tunnel syndrome or trigger thumbs is not consistent with an injury simpliciter.
[23] Dr Warfe’s oral evidence, 25 March 2008.
19. The evidence concerning the neck pain about which Mr Shatzman complained in the context of his employment by the Tax Office appears to relate to poor ergonomic posture while using a computer. Dr Bodel explained that cervical spondylosis is a degenerative condition affecting the cervical spine. Dr McGill gave evidence that cervical spondylosis is likely to cause pain on movement and that static posture alone would not give rise to symptoms of pain. On that evidence, which is not controversial, it is more likely than not that the neck pain Mr Shatzman experienced when using a computer was associated with movement and was the result of ongoing disease processes in his cervical spine rather than any sudden physiological change. Thus, we are satisfied that the neck symptoms under claim are not consistent with an injury simpliciter.
20. To the extent that the sudden onset of symptoms of pain or paraesthesia or an increase in the severity of such symptoms is posited as a sudden physiological change, we do not agree. One must look to the origin and character of the symptoms. Pain is a subjective phenomenon that may arise from a sudden identifiable physiological change occurring in part of the body. However, pain may also arise from disease processes or from transient physical or psychological events without producing physiological change. In Mr Shatzman’s case, we are reasonably satisfied that the increased symptoms he experienced were the result of disease processes rather than any sudden or identifiable physiological change, and so find.
21. However, that is not the end of the matter.
disease
22. In the alternative, Mr Shatzman asserts that the increase in bilateral upper limb and neck symptoms is an aggravation of his pre-existing ailments. In his submission, the repetitive manual activities he undertook in employment materially contributed to increase the symptoms of the bilateral epicondylitis, bilateral carpal tunnel syndrome and bilateral trigger thumbs condition from which he suffered. He asserts that the poor ergonomic arrangements in his workplace caused him to experience increased symptoms of pain in his neck, thereby aggravating his previously existing cervical spondylosis. Thus, Mr Shatzman submits, performing repetitive manual activities in employment materially contributed to increase the symptoms, and thereby aggravated the conditions from which he suffered. He says that those aggravations are within the meaning of ‘injury’ under the SRC Act and are compensable.
23. That submission is not made out.
24. If activity in employment causes an employee to experience the symptoms of a previously existing injury or condition more severely (in Federal Broom Company Pty Ltd v Semlitch (1964)[24], Kitto J gave the example of rubbing salt into a wound[25]), an injury may have occurred even if the increased symptoms are not productive of pathological harm (Commonwealth v Beattie (1981)[26]; Commonwealth Banking Corporation v Percival (1988)[27]). However, any such aggravation will only be within the meaning of ‘disease’ under the SRC Act if it was contributed to in a material degree by the employment. The phrase ‘in a material degree’ has no special meaning but imports a threshold below which, on examination of all of the circumstances, a contribution by the employment may be disregarded (see Comcare v Sahu-Kahn[28]).
[24] HCA 34.
[25] Ibid, at [7].
[26] 53 FLR 191.
[27] 20 FCR 176.
[28] [2007] FCA 15, at [16]
25. We accept that the amendments to the definition of ‘disease’ that commenced on 13 April 2007 are not presently applicable to the injury claimed by Mr Shatzman, which he alleges commenced before March 2004.
26. In order to determine whether Mr Shatzman’s employment by the Tax Office was a material factor that contributed to aggravate his previous ailments, it is necessary to analyse the evidence concerning the history and nature of those ailments. The history of Mr Shatzman’s upper limb and neck complaints commenced prior to his employment as a computer operator by the Tax Office in 1989. On 2 August 1982, Dr C. Andrews reported that Mr Shatzman complained of a 3 month history of left sided medial and lateral epicondylar pain that “seems to be aggravated by any forceful movement of the elbow joint” and “will occur with the elbow in odd postures”.[29] The Doctor also reported a history of left carpal tunnel syndrome symptoms and treatment “six years ago”.[30] On 2 August 1983, Mr Shatzman was noted to be complaining of neck pain.[31] At the time he was employed in the Australian Army as a data process operator. On 24 January 1984, Dr G. Eaton reported that Mr Shatzman “complains of painful elbows, tenderness to both lateral epicondyles, and numbness and parastaesial [sic] of the hands with associated weakness”.[32] At or about that time, Dr P. Morris, an orthopaedic surgeon, reported that Mr Shatzman’s “main complaints are of bilateral medial/lateral epicondylitis and associated finger numbness”.[33] Subsequently, in 1984 Mr Shatzman’s duties were changed from ‘data process operator’, performing keyboarding duties on a full time basis, to ‘computer operator’, because the latter role involved less keyboarding duties.
[29] T79.
[30] T79 folio 158.
[31] Exhibit R7.
[32] T80 folio 159.
[33] T80 folio 159; see also T83, T84, T88 and T89.
27. It appears likely that Mr Shatzman may have suffered a degree of partial incapacity after 1984, even though this may not have warranted any reduction in his hours of work at that time. On 26 March 1999, Dr C. Roberts, a treating orthopaedic surgeon, reported that Mr Shatzman was assessed to have a 30 percent disability due to bilateral epicondylitis, bilateral carpal tunnel syndrome and osteoarthritis of the left knee on his discharge from the Army in 1986.[34] However, the basis on which Dr Roberts made that report is unclear. Nevertheless, the assessment appears to be consistent with the medical history[35] and Mr Shatzman’s evidence, and we accept it.
[34] T6 folio 16.
[35] See T88, T89 and T90.
28. By his own account, Mr Shatzman experienced symptoms in his elbows, wrists, hands, neck and other parts of his body when he was working as a taxi driver and in Commonwealth employment prior to commencing employment at the Tax Office in 1989, but the symptoms were not sufficiently severe to cause him to stop work. We accept that evidence and so find.
29. There is no evidence that such symptoms ceased prior to Mr Shatzman’s employment by the Tax Office in 1989. We are reasonably satisfied that they did not. The evidence is that his pre-existing conditions have been operative and productive of symptoms and impairment since 1984 and throughout the period of Mr Shatzman’s employment by the Tax Office.[36] We so find.
[36] See, for example: Dr Roberts, T6 folio 17 and T8 folio 20; Dr Quach, T4 folio 10, T5 and T12-T13, Dr L. Le Leu, T15 folio 38; Dr Griffiths, Exhibit A3, p7; Dr J. Bodel, Exhibit A2, p4; Dr Andrews, Exhibit R3; and Dr Stevenson, Exhibit R2, pp 4-6.
30. By Mr Shatzman’s account, he experienced increased bilateral wrist and elbow symptoms on repetitive manual activity at the Tax Office, but “not enough to stop work”.[37] That is consistent with the prior medical history from 1983. Mr Shatzman’s evidence is that in January 1989 he was employed by the Tax Office in the position of Senior Computer Operator Grade 3. At that time, he says that his duties included supervising staff involved in maintaining and servicing the Tax Office mainframe computers. He says that his upper limb symptoms were aggravated if he undertook “excessive keyboarding”. In 1991 he obtained an ASO4 position and was then involved in sourcing, buying, cabling and installing desktop computers. His evidence is that his upper limb symptoms increased if he undertook “too much keyboarding or heavy lifting or manual work with my hands”.[38] Mr Shatzman obtained treatment from Dr Quach, a general practitioner, over a long period prior to and during his employment by the Tax Office. Dr Quach referred him to Dr Andrews, Dr B Ashman and Dr Roberts for assessment and treatment, as well as to physiotherapy. None of these doctors were called to give evidence. Nevertheless, we note the related materials that have been filed.
[37] Mr Shatzman’s oral evidence, 25 March 2008.
[38] Ibid.
31. On 13 January 1992, Dr D. Graham reported that Mr Shatzman suffered from “bilateral epicondylitis elbows” and “bilateral carpal tunnel syndrome” and that he “Experiences numbness in both hands in [?] mornings. (L) worse than (R). Both hands become numb after riding bicycle”. The doctor reported “Tenderness on pressure of epicondyles of both elbows. This gets worse after much lifting during the day” and “Gets sore in hand and wrist with development of numbness in hands after writing for 5 minutes”.[39] On the same day, Mr Shatzman completed a Lifestyle Report in which he stated that he experienced difficulty undertaking domestic activities and “all [domestic] activities” take longer because of “pain in knees…loss of feeling in hand, pain in elbows as well”.[40]
[39] T118 folio 210; see also notes at T117 folio 204.
[40] T118 folios 215-216.
32. These ongoing conditions resulted in increasing incapacity for work from 1997 and the requirement for medical treatment, including bilateral carpal tunnel decompression surgery performed by Dr Roberts in 1998. In 1997 Mr Shatzman’s hours of work were reduced from full time to 19 hours per week. In 1998 he was transferred to the Tax Office Information Technology Security Section and his hours were reduced to 15 hours per week.
33. On 26 February 1999, Dr C. Howse, a specialist in sports medicine, reported that Mr Shatzman’s elbow condition “relates to the onset of medial pain which occurred in 1984 with prolonged keyboarding” and “The pain has gradually increased in intensity and still he is experiencing pain with keyboarding and some associated crepitus within the elbow joints”.[41] On 26 March 1999, Dr Roberts reported that:
[41] T157 folio 290.
“[Mr Shatzman’s] elbows have pain around the medial and lateral epicondyles. The pain is worse with any attempted physical work or when changing gears in the car. When he performs no activity whatsoever his symptoms will gradually settle, however, they return again with any reintroduction of activity.”[42]
[42] T6 folio 17.
Dr Roberts also reported that Mr Shatzman had:
“…numbness in both hands and paraesthesia with any attempted activity. He was developing severe symptoms which would come on rapidly after five minutes work and he has subsequently had bilateral carpal tunnels decompressed by myself. Now the symptoms are improved although not resolved. He will develop paraesthesia in both hands after activity but not until after 15 minutes of work.”[43]
On 13 April 1999, Dr Roberts reported:
“As I have said previously, his job which involved both typing and keyboarding for long periods of time, together with the physical activity required in the forces, has led to an exacerbation and acceleration of his condition [a type of spondyloarthropathy]. He is now quite significantly disabled and I believe they would not be at the extent that he is currently experiencing if it was not for his career in the forces.”[44]
[43] T6 folio 17.
[44] T8 folio 19.
We do not accept Mr Shatzman’s assertion that Dr Roberts is referring in these remarks to his employment by the Tax Office. As it appears to us, the Doctor is referring to his ‘job’ in ‘the forces’, namely the Army. We so find.
34. In March 2001, Mr Shatzman was provided with an appropriate ergonomic work station and computer equipment following a review. Nevertheless, in April 2001, his hours were further reduced to 9 hours per week. From 1998 Mr Shatzman was engaged in light desk-based administrative duties consistent with medical restrictions. Nevertheless, his duties included some use of a computer and a telephone. Mr Shatzman described his duties as “not much”.[45] In March 2004 he was sent home for operational reasons relating to his productivity.[46] He was recalled to work in January 2006 and resumed duties as ‘Movement Coordinator’, working 9 hours per week. In or about February 2006, he attempted a rehabilitation program and increased his hours to 12 hours per week. However this was not successful and in or about May 2006 his hours were reduced to 6 hours per week, performing duties associated with managing stationery. This is ongoing.
[45] Applicant’s oral evidence, 25 March 2008.
[46] Exhibit A1 refers.
35. Considering the evidence of Mr Shatzman, Dr Graham, Dr Howse and Dr Roberts, we are reasonably satisfied that in the period from his commencement of employment by the Tax Office to the present, Mr Shatzman has experienced symptoms of bilateral upper limb pain (worse on the left, even though Mr Shatzman is right hand dominant) and/or numbness and neck pain on activity, whether at work or not. We are reasonably satisfied that such symptomatology is a characteristic of the diseases affecting his upper limbs and neck that he suffered prior to commencing employment with the Tax Office in 1989. We so find.
36. As it appears to us, Mr Shatzman’s complaints of symptoms associated with keyboarding activities during his Army service in and after 1984[47] are substantially consistent with his complaints to Dr Graham in 1992 of increased symptoms of pain and paraesthesia after only 5 minutes writing or keyboarding[48], and that those complaints were substantially the same as his complaints to Dr Roberts in 1997 and 1998. This symptomatology was improved but not resolved by Dr Roberts’ surgical decompression of his carpal tunnels in 1998. Thereafter it appears that he complained of increased symptoms after 15 minutes writing, keyboarding or other similar activity. In his oral evidence, Mr Shatzman agreed that keyboarding and similar activities have been a problem for him since his injury and the onset of symptoms in or about 1983. On that history, it appears that Mr Shatzman’s complaints concerning the onset of symptoms he associates with activities in employment, particularly keyboarding, have been substantially consistent since his injury in 1984 and are ongoing. We note in passing that on 6 June 2007, Dr McGill reported no clinical findings consistent with carpal tunnel syndrome or epicondylitis.[49] Questions of diagnosis aside, we are reasonably satisfied and find that Mr Shatzman’s injuries during the period of his Defence service caused him to experience more severe symptoms when undertaking repetitive manual activities, whether at home or at work, and that incapacity has been ongoing and progressively increasing throughout the period of his Tax Office employment.
[47] For example, see T80.
[48] T18 folio 210.
[49] Exhibit R1, pp 9-10.
37. As Gyles J said in Australian Postal Corporation v Bessey[50]: “The mere fact that incapacity from previously existing disease caused pain and paraesthesia while working does not mean that the symptoms are the result of a work injury, rather than the result of the previously existing and ongoing condition”.[51] Those remarks are apposite in Mr Shatzman’s case. We find that the increased symptoms of which he complained occurred in the context of the Tax Office employment but were not caused or aggravated by it. It is a fact that the symptoms increased in severity while performing activities at work, as they did performing activities at home. In both cases, the activity-related changes in the severity of symptoms Mr Shatzman experienced were caused by the previously existing diseases from which he suffers, which have progressed over time to cause symptoms of greater severity and duration and increasing levels of incapacity and impairment.
[50] (2001) 32 AAR 508.
[51] Ibid, at [6].
38. It appears that Dr Griffith, Dr Warfe and Dr Bodel accepted that even though the activities Mr Shatzman undertook in employment by the Tax Office did not cause any increase in pathology[52] or “structural damage”[53], the repetitive manual activities he undertook were associated with increased symptoms in his arms, hands and neck. These doctors considered that such an increase in symptoms is consistent with an aggravation of Mr Shatzman’s ongoing conditions. However, it does not follow that the increase in symptoms was materially contributed to by the employment. We are satisfied that Mr Shatzman experienced more severe symptoms of the bilateral upper limb, thumb and cervical spine conditions from which he suffered on activity, whether at work or not, and that such symptomatology is the result of disease and not any particular activity in employment. We are reasonably satisfied that the particular activities in employment to which Mr Shatzman has pointed were not material factors in the worsening of symptoms or in any increase in the severity or the duration of symptoms, rather that those unfortunate phenomena are the result of disease.
[52] Dr Griffith, Exhibit A3, p10.
[53] Dr Bodel, Exhibit A2, p4.
39. Furthermore, the evidence is plain enough that it is reasonable to expect a reduction in symptoms, although not a complete abatement of symptoms, on cessation of any activity with which symptoms are associated (Dr McGill, Dr Bodel, and Dr Warfe). In Mr Shatzman’s case, he reduced his hours of work from full time to 19 hours per week in 1997, and then again to 9 hours per week in 2001. In this period there is no evidence that his symptoms diminished, even though his duties from 1997 did not involve the same repetitive manual duties as previously and were subject to medical restrictions. From 2001 he was employed as a Movement Coordinator using an ergonomic workstation appropriate to his incapacity. His duties were under medical restriction, 3 hours for 3 days per week. Nevertheless there is no evidence that this reduction in employment activity was productive of a reduction in his bilateral upper limb or neck symptoms in any commensurate degree. From March 2004 to January 2006, he was sent home without any duties to perform. Mr Shatzman’s evidence is that during the period of his absence from work, his upper limb and neck symptoms reduced but he continued to experience symptoms when attempting activities such as housework and gardening. His evidence is that he liked to play computer games and would do so on his home computer, but was limited to one hour per day for a week and then would be unable to do so for a month or more. Mr Shatzman also gave evidence that he undertook employment delivering The Chronicle newspaper to approximately 300 households per week. This work required him to collect, fold and deliver the newspapers. His evidence is that this work, especially folding the papers, was difficult for him and caused his symptoms to flare, ultimately leading to him ceasing that employment. We accept his evidence concerning the symptoms he experienced when attempting these and other activities, such as household chores.
40. By his own account, Mr Shatzman continued to experience activity-related bilateral upper limb, thumb and neck symptoms during the period of his absence from work from March 2004 to January 2006. However, his subjective assessment that the symptoms reduced in this period is not supported by objective or clinical medical evidence. We do not find this evidence persuasive. It is possible that Mr Shatzman reduced his activity level generally and his symptoms diminished during the period, but if that were so one would expect to find a commensurate increase in his work capacity in January 2006. However, Mr Shatzman returned to work 9 hours per week in January 2006 and failed when attempting to work 12 hours per week. Soon thereafter his hours were reduced to six hours per week. This history is not consistent with a diminution of symptoms on cessation of employment activity, rather it is consistent with increasing incapacity and impairment as a result of the progression of disease. We so find.
conclusion
41. The particular diseases from which Mr Shatzman suffers, variously labelled as bilateral medial and lateral epicondylitis, bilateral carpal tunnel syndrome and cervical spondylitis, were, it is accepted, aggravated (exacerbated and accelerated – as reported by Dr Roberts,[54] for example) by his employment in the Army. On the evidence before us, that is correct. We are reasonably satisfied that those aggravation injuries acting in concert with the idiopathic progression of Mr Shatzman’s underlying degenerative conditions produced chronic activity-related symptoms and ongoing and increasing incapacity throughout the period of his employment by the Tax Office.
[54] T8 folio 19.
42. The preponderance of the expert medical evidence is that the onset of ‘trigger thumbs’ on the left and subsequently the right may, on the balance of probabilities, be associated with the carpal tunnel decompression surgery or generalized tendinopathy.[55] We understand that the bilateral trigger thumbs condition is accepted as an injury resulting from Mr Shatzman’s Defence service in the Army. On the evidence before us, that conclusion appears to be correct.
[55] Dr Griffith, Exhibit A3, p8.
43. Simply put, as it appears to us, the particular upper limb and neck symptoms about which Mr Shatzman has complained in relation to repetitive activities in employment are characteristics of disease. Epicondylitis, carpal tunnel syndrome, trigger thumbs and spondylosis are characterised by symptoms of pain or paraesthesia associated with movement. The evidence is plain enough that the effects of these conditions and injuries are ongoing and over time have been productive of increasing levels of impairment and incapacity. We find that Mr Shatzman has experienced ongoing but variable symptoms of pain, paraesthesia and discomfort in his arms, hands, thumbs and neck as a result of his injuries prior to commencing employment by the Tax Office. Over time he has experienced these symptoms more intensely with activity, whether at work or not.
44. It is well established that the symptoms of an injury are part of the injury in relation to which compensation is payable (Tippett v Australian Postal Corporation[56]). Mr Shatzman successfully claimed compensation for the increasing incapacity for work he has suffered as a result of his accepted injuries. This is ongoing.
[56] (1998) 27 AAR 40, at 44.
45. However, we do not accept the submission put for Mr Shatzman, that any increase in upper limb symptoms associated with activities in the workplace are within the meaning of an ‘injury’ or ‘disease’ and are compensable under the SRC Act. Plainly there is a relationship between activity and the symptoms Mr Shatzman suffers. The pain and paraesthesia that Mr Shatzman experiences when undertaking many activities, whether of a domestic nature or in the context of employment, are characteristic symptoms of the disease or diseases from which he suffers. The pathological processes of the particular disease are the cause of the symptoms he experiences on activity. We accept that the intensity of symptoms may vary from time to time and from one activity to another. Mr Shatzman’s evidence is that he has progressively reduced his activity levels at home and in his employment as a result of increased symptomatology. His evidence is that when he was certified fit to work 19 hours per week, or 9 hours per week, or 6 hours per week (as he presently is), he could and did cope with those hours and duties – the symptoms were not such as to cause total incapacity. As can be seen, the extent of his incapacity for work has increased over time and that increase is attributable to the progression and increased symptomatology of the diseases from which he suffers.
46. We are satisfied that it is the disease or diseases from which Mr Shatzman suffers that cause him to experience elevated symptoms with activity, whether at work or not. That has been consistently so, progressively and in varying degrees since 1983. We are reasonably satisfied that even though Mr Shatzman may experience elevated symptoms with activity in the workplace, such aggravation of his previously existing conditions is not materially contributed to by the employment. The employment is merely one context in which the symptoms of the disease or diseases occur. The same can be said of his domestic environment. The incapacity Mr Shatzman suffers as a result of such symptoms is the result of his previously existing conditions and injuries, in relation to which compensation has been claimed and paid.
47. We are not persuaded by the evidence of Dr Griffiths, Dr Warfe and Dr Bodel, that Mr Shatzman’s employment increased the severity and duration of symptoms, or that the particular employment aggravated Mr Shatzman’s previous injuries and conditions. We are reasonably satisfied that the ‘aggravations’ to which these doctors refer are activity-related symptoms of previously existing diseases. The underlying diseases from which Mr Shatzman suffers are characterised by such activity-related symptoms.
48. Being mindful of the authorities on the subject of the aggravation of disease and related incapacity (see Casarotto v Australian Postal Corporation (1989)[57] and Martin v Australian Postal Commission (1999)[58]), we are not persuaded that the progress of Mr Shatzman’s previous injuries or underlying conditions was accelerated or aggravated or that the injuries were rendered symptomatic or more severely symptomatic in any material degree by his Tax Office employment. The activity-related ‘aggravations’ to which Drs Griffiths, Warfe and Bodel pointed are minor in character and in the form of temporary increases in the severity of symptoms and discomfort Mr Shatzman experienced. We are reasonably satisfied that the ‘aggravations’ are symptoms of the particular diseases, rather than operative factors that aggravated or accelerated the diseases in any meaningful sense. In effect, the activity-related symptoms were evanescent. We are not persuaded that the occurrence or elevation of such symptoms in the context of employment were productive of any lasting incapacity, rather that Mr Shatzman’s increasing incapacity was a result of the progress of his previous injuries and diseases.
[57] 10 AAR 191, at 202-203.
[58] 29 AAR 420, at 431-432.
49. It is true that such minor aggravations occurred in the context of Mr Shatzman’s employment. However, the particular employment was but one environment in which such aggravations occurred. The fact is he experienced activity-related symptoms as a function of disease whether at work or not. In Dr Roberts’ words: “When he performs no activity whatsoever his symptoms will gradually settle, however, they return again with any reintroduction of activity”.[59] Thus it can be seen that the employment was a benign context in which the symptoms of pre-existing disease occurred. We are not persuaded, as a matter of probability, that the employment contributed in a material degree to the aggravations Mr Shatzman claims. We so find.
[59] T6 folio 17.
50. Considering all of the evidence, we find that the increased symptoms about which Mr Shatzman complained in relation to his employment by the Tax Office were not materially contributed to by that employment. It follows that the increased symptoms are not within the meaning of ‘disease’ or ‘injury’ for the purposes of the SRC Act.
51. That being so, Mr Shatzman’s case is not made out and the decision under review is affirmed.
52. There remain three matters for comment. Firstly, on Mr Shatzman’s evidence, it appears that he was not given productive or meaningful duties by his employer and was sent home, effectively on leave, from March 2004 to January 2006. He was not paid additional compensation for incapacity during this period. By his own account, this resulted in the claim for compensation against Comcare that is presently in issue. However, there is no evidence before us that he suffered any additional incapacity for work during this period on medical grounds. If that is correct, the basis on which he was sent home or required to take leave is unclear. We note the content of the document in Exhibit A1. This issue has an industrial character that is not amendable to resolution under the SRC Act and it is for Mr Shatzman to pursue as he sees fit. Secondly, if there is evidence that Mr Shatzman was totally incapacitated for work during this period that we have not seen, and that additional incapacity is as a result of his previous injuries, then it is for him to make a claim for increased compensation on that basis. Thirdly however, if Mr Shatzman was only partially incapacitated for work during the period (being able to work 9 hours per week as appears likely on the evidence before us) and the employer was not in a position to offer him suitable duties during the period, there may be a case to be made for additional compensation in relation to his accepted injuries. That is a matter for Mr Shatzman that cannot properly be dealt with in these proceedings.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ............................................................................
Jane Gribble
AssociateDate of Hearing 25, 27 March 2008
Date of Decision 14 April 2008
Counsel for the Applicant Alan Anforth
Solicitor for the Applicant Paul Crabb
Capital Lawyers
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Kate Watson
Australian Government Solicitor
0
15
0