Shirreff and Comcare (Compensation)
[2020] AATA 1710
•11 June 2020
Shirreff and Comcare (Compensation) [2020] AATA 1710 (11 June 2020)
Division:GENERAL DIVISION
File Number: 2018/0073
Re:Jenny Shirreff
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:11 June 2020
Place:Melbourne
The Tribunal affirms the decision under review.
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Dr Damien Cremean, Senior Member
Catchwords
WORKERS COMPENSATION – claimed conditions of rheumatoid arthritis and right elbow epicondylitis/angiofibroblastic tendinosis – pain suffered during work tasks – pain suffered outside of work tasks – underlying condition – pain is response of underlying condition to tasks performed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety Rehabilitation and Compensation Act 1988
Cases
Australian Postal Corporation v Bessey [2001] FCA 266
Balacki and Comcare [2013] AATA 768
Comcare v Reardon [2015] FCA 1166; 148 ALD 356Commonwealth v Beattie (1981) 53 FLR 191
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
11 June 2020
BACKGROUND
The Applicant, Ms Jenny Sherriff, applies to review a decision made on 16 November 2017 by the Respondent affirming a determination made on 24 July 2017 that she is not entitled to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“Act”) for her claimed conditions of rheumatoid arthritis and right elbow epicondylitis on the ground that her claimed conditions were not significantly contributed to by her employment.
HEARING
The hearing in this matter was conducted over three dates: 3 July, 22 November and
4 December 2019.
At the hearing the Applicant was represented by Mr Hull, of Peter Hull & Associates, and the Respondent was represented by Mr J Lenczner of Counsel.
The Applicant gave affirmed evidence in person, and Mr Peter Rehfisch, orthopaedic surgeon, gave affirmed evidence by telephone. The Respondent called Associate Professor (AP) Evan Romas who gave affirmed evidence by telephone.
LEGISLATIVE PROVISIONS
Section 14 of the Act relevantly provides:
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.
The word injury is defined in s 5A(1) of the Act as a disease or 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 the aggravation of such a physical or mental injury.
The word disease is defined in s 5B(1) of the Act as an ailment suffered by an employee or the aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment. The expression significant degree is defined as a degree substantially more than material. An ailment is defined in s 4(1) as meaning any physical or mental ailment, disorder or defect.
ISSUES
As pointed out by Counsel for the Respondent, in this matter there are no witness statements and no Statements of Issues, Facts and Contentions.
It is not in issue that the Applicant has suffered the conditions she claims, namely rheumatoid arthritis and right elbow epicondylitis. At the conclusion of the hearing, the parties agreed that the claimed condition of rheumatoid arthritis was not in issue, and that that part of the reviewable decision should be affirmed. The issue is therefore whether the right elbow epicondylitis condition is compensable under the Act as a matter of causation, considering in particular s 5B(1).
The issue therefore for me is whether the Applicant’s claimed condition was caused by or contributed to, to a significant degree, by her employment. The Applicant maintains that the right elbow epicondylitis is. The Respondent denies this.
EVIDENCE
Applicant
The Applicant gave evidence that she worked for the Department of Human Services as a customer services officer. She described the nature of her work as telephone work in the call centre and processing claims work. She would use the mouse and keyboard throughout her day processing claims or use a headset and take calls from customers. She was working four days per week and had been doing so for 12 years. Over that time her role had not changed.
The Applicant stated that in the second half of 2016 she developed issues with her wrist at work. She was getting a lot of pain whilst using her keyboard and mouse. After a workplace assessment, and after receiving a new mouse and keyboard, the pain in her wrist started going up her arm and towards her elbow. Massaging seemed to make her pain worse. She then went to her general practitioner (“GP”) who suspected she had tennis elbow. She was prescribed a cortisone injection and physiotherapy. The Applicant said “there was no real relief” after the injection, although she continued with the physiotherapy. At this point she was also having “Humira” injections and “Plaquenil” for rheumatoid arthritis, which she had suffered from for about six years. She tried rest at home and further cortisone injections but there was no significant improvement. She noticed her arm had become heavy.
Finally, the Applicant went to see an orthopaedic surgeon, Mr Rehfisch, who operated on her arm on 30 January 2018. She was in hospital for a day and rested at home for five weeks or so. The Applicant stated that her arm was much better, and she had not had a problem with it since.
However, the Applicant said she knew that it was her work that caused her arm condition: “I know that attending work every day was, in my terms, exacerbating the pain that I had in my arm every day.” She said that “by the time I finished a shift at work, I would nearly have to carry my arm with me into the car.” She said she felt the pain got worse in her arm when she reached for the keyboard while working.
In cross examination, the Applicant said that by the end of the working day “my pain levels were seven or eight… In the mornings [it] might’ve been a four or a five.” Certain activities at home, such as chopping vegetables or washing her hair, would make her pain worse. She agreed that she had been treated in the past for varicose veins and now suffered conditions which include asthma and fibromyalgia. She described her role in more detail, that at work she would be coding in information and generally would work to a limit of 20 minutes per customer with “80 to 85 per cent is [working] with your hands and the 10 to 15 per cent would be reading.” It was in telephony work, where a customer calls the call centre, that the most intensive mouse work occurred. When doing telephony work, she would be going from screen to screen and coding. She said that she considered that she felt an exacerbation of her condition every day whilst she was at work, compared to when she was at home.
Cross examination of the Applicant continued at the resumed hearing
The Applicant agreed that the former system of having two computer screens had been replaced by one large screen, but at the time she made her claim she was using two computer screens. She agreed that some tasks she was doing would take longer than others. Further, that there would be times when she would be speaking on the phone with customers rather than using the mouse to key in information and that there would also be times when she was sitting at her desk only reading screens. But in answer to Counsel’s question that in her role there was “a fair chunk of just talking to people” she replied, “Not always, no”. As to the expression “Not always” she explained some people talk more than others and each call is different in regard to what they need help with, so it is hard to generalise. She agreed that during her working day there was a lunch break and morning and afternoon tea breaks.
The Applicant agreed that there is no reference to elbow pain in a worksite assessment made on 2 November 2016 included amongst the T Documents. The Applicant also agreed that, contrary to her initial claim that she had first felt pain in her elbow and sought treatment in 2016, the Latrobe Massage Clinic records were accurate and reflected that she first sought treatment in 2017.
In re-examination, the Applicant said that averaged over a week, “I would spend probably 70 to 80 per cent of my time using the keyboard and mouse.” But this statement was given, I noted, with the Applicant asking, “Is that what you are asking?”, to which Mr Hull responded "Well, that’s the answer to the question, yes, that was, yes thank you.” I cannot say the Applicant was unprepared for that answer.
Mr Peter Rehfisch
Mr Rehfisch gave evidence that he is an orthopaedic surgeon. He said he stood by the comments he made in his report dated 21 March 2019. In that report, he had said that the Applicant had been subject to repetitive activities with her elbow and therefore he considered there is good evidence that her symptoms are strongly related to her occupation.
Mr Rehfisch said it was possible in the Applicant’s case that either of two conditions were the cause of her problem: epicondylitis due to repetitive activities or rheumatoid arthritis. He explained that, on the balance of probabilities, his feeling was “the epicondylitis was predominantly caused by the repetitive activities.” He agreed (in reference to AP Romas’ report) that the Applicant had no distinctive clinical features, “but the clinical symptoms in someone who is performing activities repeatedly with [her] arm, is a very helpful suggestion that it is repeated activities that are causing the problem.” He said he felt (in reference to a comment by AP Romas) that “both medial and lateral epicondylitis have a significant repetitive type cause.” He said “if someone has an intrinsic cause, such as rheumatoid arthritis, you would think it would be highly likely they will get problems elsewhere in the body caused by their rheumatoid. But in just one elbow, often it is repetitive activities that have contributed to it significantly.” He said he believed the Applicant’s “wrist movements are contributing significantly to the lateral epicondylitis and the pain [she has been experiencing] all at once.”
In cross examination, Mr Rehfisch said he had read articles which would support a view that the Applicant’s epicondylitis is related to her repetitive work activities, and that although he had not enumerated them, they were out there, and he would confirm this. He said he was not prepared to offer answers to some of Counsel’s questions (relating to the literature) because, not having seen the articles in question, he thought “it would not be safe for me to comment on them”. In the course of answering questions he indicated, however, that he had located an article in volume 95 of the British Journal of Bone and Joint Surgery at pages 1158 to 1164. In answer to one particular question, he stated that “the human body is something that will tolerate long periods of doing the same thing without problems, and then can suddenly start causing problems.”
Mr Rehfisch said he disagreed that the Applicant’s condition was a predominantly age-related condition, especially considering she was born in 1971. He said in someone with a history of repetitive use of the limb, it is more likely to be substantially caused by the repetitive use.
Associate Professor Evan Romas
AP Romas gave evidence that he is a consultant rheumatologist at St Vincent’s Hospital in Melbourne, where he is head of Rheumatology which has a team of 15 rheumatologists. He said that the reports he prepared on 5 December 2018 and 13 May 2019 were true and correct with some minor corrections.
In the first of these reports AP Romas described the Applicant as “a 47-year-old Centrelink call operator with a background history of rheumatoid arthritis, overweight and obesity who developed work disabling right lateral epicondylitis.” He said “she now has a substantially resolved right lateral epicondylitis following multiple corticosteroid injections, physiotherapy and surgery.” Using the terms “epicondylitis” and “angiofibroblastic tendinosis” interchangeably, the report states that the Applicant’s epicondylitis/angiofibroblastic tendinosis is a constitutional underlying medical condition. The report states that the major risk factor is ageing. The report continues “highly repetitive work alone or in combination with other factors does not appear to be causative.”
In his second report, AP Romas said “I agree that lateral epicondylitis was the cause of [the Applicant’s] pain in the elbow when she was typing and using her mouse at work.” He says however, her use of her hand to do so elicits the symptoms of epicondylitis—but that her typing and mouse use at work did not cause her lateral epicondylitis.
In oral evidence AP Romas gave a description of the condition known as “epicondylitis”. He said it was discovered by pathologists that there was not really a true inflammatory process going on in affected areas, but that it was more of a degenerative process. He said that by the time the condition becomes symptomatic there is not much inflammation to be found. He acknowledged that the condition is very, very painful. More exactingly he considered the Applicant’s condition should be described as angiofibroblastic tendinosis.
AP Romas explained that angiofibroblastic tendinosis is a condition that occurs widely and sporadically in the community. He said the circumstances in which it is most likely to occur, “based on a lot of evidence that has accrued over the years”, are cases of workers having repetitive activities under load that involve wrist extension and finger extension or forceful gripping. In relation to the Applicant, he said that although she was performing repetitive work “it cannot be said that she was performing heavy repetitive work with loads greater than a kilogram on a repetitive basis…”. He added: “now it could be said that she has a work-related condition”, however that looking at the studies “that’s a difficult case to make.”
AP Romas indicated certain misgivings about the paper in the British Journal of Bone and Joint Surgery that Mr Rehfisch referred to in evidence.
AP Romas said that “the Applicant is in the prime age group for getting spontaneous angiofibroblastic tendinosis.”
In cross examination, AP Romas said (in reference to a report of Dr Phillip Haynes in the T documents) that epicondylitis is not a manifestation of rheumatoid disease. When pressed by Mr Hull, AP Romas said Dr Haynes’ opinion was wrong. He re-affirmed the view he expressed in his December report that there is no connection between true rheumatoid arthritis and lateral epicondylitis. He said that angiofibroblastic tendinosis is a degenerative condition and the Applicant suffered this but there was no explaining lateralism—that is why it was in her right side and not her left.
Further, AP Romas agreed with the view, and stated that there was no other conclusion that one could draw, that the Applicant developed pain in her right elbow when she was typing and using her mouse at work. He said that whilst the Applicant did have right repetitive wrist pain, that does not mean that the repetitive wrist motion caused the condition. He explained that the occurrence of pain should not be confused with the issue of causation.
Submissions
Mr Hull submitted that I should find the Applicant to be a witness of truth. It was submitted that her whole case is about the disability caused by the condition in her elbow that resulted in her inability to attend work. The evidence of Mr Rehfisch was that her condition was directly attributable to her work. It was the pain she was suffering that prevented the Applicant from being able to return to work. It was the pain which was the condition. It was also submitted that if the Tribunal accepted the Respondent’s contention that there was an underlying condition, that the Applicant’s repetitive wrist motion at work exacerbated the underlying condition.
For these reasons as I have summarised, Mr Hull submitted that the decision under review should be set aside.
For the Respondent, Mr Lenczner submitted that the decision under review should be affirmed. He submitted that a submission based on pain on movement at work, if this is the claim being advanced by the Applicant, is a case of the condition becoming worse but not being made worse. Mr Lenczner said that the evidence of Mr Rehfisch related to a claim concerning the Applicant’s underlying condition being related to her employment. He submitted that the case for the Applicant “falls or stands on the basis of… whether the underlying condition is related to employment.”
Mr Lenczner referred the Tribunal to the decision of Deputy President Forgie in Balacki and Comcare[1], where she discussed a statement of the Full Court of the Federal Court in Commonwealth v Beattie.[2] Deputy President Forgie explained that “pain brought on by work activity does not necessarily constitute evidence of aggravation of pre-existing injury.”[3] The Respondent submitted that the present case was a classic one, where there is an increase in pain out of certain movements, but this is not having any impact on the underlying condition, “a classic case of something becoming worse.” Mr Lenczner submitted that the opinion of AP Romas should be accepted as it details the Applicant’s condition.
[1] [2013] AATA 768.
[2] (1981) 53 FLR 191.
[3] Balacki and Comcare [2013] AATA 768 at [26].
Authorities referred to by Counsel for the Respondent included Australian Postal Corporation v Bessey [2001] FCA 266.
For these reasons as I have summarised, and others, Mr Lenczner submitted that the decision under review should be affirmed.
CONSIDERATION
One thing made very clear in this case is the need for carefully prepared witness statements and submissions. This case went into its third day because both were lacking. I do not take issue with the parties themselves on this. But clearly without written witness statements and submissions the Tribunal’s time is taken up and it adds to the costs of the parties. Practitioners should be made aware of this.
I indicated in exchanges with Mr Hull that the Applicant seemed truthful and I accept that she is a witness of truth.
While I accept the Applicant’s evidence, it is a different matter whether I find she qualifies for compensation under s 14 of the Act.
This is not the place for me to decide the vexed question about the relationship between modern workplace activities and various kinds of injuries such as repetitive strains. In a general way, and only that, I can see it to be plausible that keyboard and mouse work in the modern workplace can bring about various conditions or contribute to their occurrence.
I am in no doubt that the Applicant has suffered a debilitating and painful condition. For this she had surgery which has proven successful.
I note in closing that the Applicant did not press her claim for rheumatoid arthritis, and I find that the Applicant's rheumatoid arthritis was not caused by or contributed to to a significant degee, her employment.
The case was run as one where it was claimed the Applicant’s epicondylitis was caused or contributed to by her repetitive mouse work in particular, but keyboard work as well. It was only at the final submissions stage that it clearly emerged that her pain was itself claimed to be a compensable injury.
I shall deal with the latter first. While I allow that claim to be advanced, in my view it must fail. The evidence is plain to me, in the way in which the case was put at that final stage, that this is a clear example of a condition becoming worse and not being made worse by work.[4] There is no doubting that the Applicant was in increased pain at work. I find that her pain condition became worse at work and was not made worse because of it.[5] That means her pain condition is not itself a compensable injury.
[4] See Comcare v Reardon [2015] FCA 1166; 148 ALD 536.
[5] See also Australian Postal Corporation v Bessey [2001] FCA 266 at [6].
This last point is connected with a finding which I make in relation to the Applicant’s work. Broadly, her work routines were as she described them. I accept that. I also accept that much of her work was repetitive. Further I accept that there is a temporal connection between the pain of her condition and her workplace activities.
However, I accept the evidence in that regard of AP Romas. I prefer his evidence as it was thoroughly researched and expertly given. I find on the basis of his evidence, that the Applicant suffered an underlying medical condition: angiofibroblastic tendinosis. In accepting AP Romas’ evidence, I find this condition was not caused by her work but was constitutional or degenerative. I accept the major risk factor in her case is age, but he also mentioned in his report obesity.
So, while the Applicant’s work caused her pain from time to time, I do not find that her condition was brought on by her work. I do not consider I should accept Mr Rehfisch’s opinion to the contrary.
In any event, Mr Rehfisch’s opinion is based on the assertion about the repetitive nature of the Applicant’s work. I do not find her work was as repetitive as Mr Rehfisch may have thought. It is clear from her answers in cross examination that there were many periods during the day—recalling she was only working a four-day week—when she was not doing mouse work or keyboarding. It was put to her that “a fair chunk of her time was spent just talking”. Her reply was “Not always, no.” I considered this was an unhelpful reply, and her response was that it was hard to generalise. But she admitted she did do a lot of talking on the phone, where she would not be using mouse or keyboard, and also that she had morning tea, lunch and afternoon tea breaks.
I would regard the Applicant’s mouse and keyboard activities as “repetitive” when she did them, but I could not accept—based on her own evidence—that these were the activities she performed continuously throughout the working day.
In other words, in my view, the very basis to the opinion of Mr Rehfisch is lacking. Also lacking, in my view, is the correct identification of the applicant’s condition which I consider was given to me in evidence by AP Romas.
I have not been assisted in any of these regards by the untested views of Dr Anthony Boers or those of the physiotherapist Mr Timothy Green. Neither was called to give evidence and it would be hazardous to rely on untested material in my view. Therefore, I place no weight on this evidence.
CONCLUSION
Accordingly, in my view the decision under review must be affirmed.
I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
......[sgd]...................................................
Associate
Dated: 11 June 2020
Dates of hearing: 3 July, 22 November and 4 December 2019 Advocate for the Applicant: Mr Peter Hull Solicitors for the Applicant: Peter Hull & Associates Counsel for the Respondent: Mr Joseph Lenczner Solicitors for the Respondent: Moray and Agnew Lawyers
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