Skobelkin-Mulcair and Comcare (Compensation) - [2019] AATA 1054

Skobelkin-Mulcair and Comcare (Compensation) [2019] AATA 1054 (29 May 2019)
Division:GENERAL DIVISION
File Number(s): 2017/2047
Re:Olga Skobelkin-Mulcair
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:29 May 2019
Place:Canberra

The decision under review is set aside, and in substitution the tribunal decides that Comcare is liable to pay compensation to Ms Skobelkin-Mulcair under sections 16 and 19 of the SRC Act from 17 November 2016 to the date of this decision.
........................................................................
Mark Hyman, Member
Catchwords
WORKERS COMPENSATION – carpal tunnel syndrome and chronic pain condition –- diagnosis - whether conditions contributed to by employment to the requisite degree – whether conditions constitutional - psychological overlay – evidence of expert witnesses – whether original causation continues – whether medical treatment provided in relation to accepted or reformulated condition – whether medical treatment reasonable – whether applicant incapacitated – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Safety, Rehabilitation and Compensation Act 1988, ss 4. 5A, 5B, 14, 16, 19, 24, 27, 66, 67, 71
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Comcare v Power [2015] FCA 1502
Commonwealth v Beattie (1981) 35 ALR 369
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Portors v Comcare [2018] FCA 914
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition - Text Revision
REASONS FOR DECISION
Mark Hyman, Member
29 May 2019

This decision is about whether the applicant, Ms Skobelkin-Mulcair, has a continuing entitlement to compensation. Ms Skobelkin-Mulcair began suffering symptoms in her right hand and arm in 2006. She lodged a claim for workers’ compensation in January 2007 and Comcare, the respondent, accepted liability in February 2007 for “carpal tunnel syndrome (right)” under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) with a date of injury of 5 December 2006. Ms Skobelkin-Mulcair had surgery in December 2007, but although her carpal tunnel syndrome appeared to resolve, she was left with a pain problem and apparently developed a chronic pain syndrome. On 2 December 2013 Comcare accepted liability for chronic pain syndrome secondary to carpal tunnel syndrome. Following further medical investigations, Comcare decided on 17 November 2016 that Ms Skobelkin-Mulcair had no present entitlement to medical expenses and incapacity payments, affirming that decision in a reconsideration determination on 6 February 2017. Ms Skobelkin-Mulcair applied to this tribunal for review of Comcare’s decision on 19 April 2017.
The tribunal held a hearing on 1 and 2 April 2019. Mr Allan Anforth of Counsel appeared for Ms Skobelkin-Mulcair, briefed by Ms Georgia Gamble of Maurice Blackburn Lawyers; Mr Ben Dube of Counsel appeared for Comcare, briefed by Mr Lino Kim of Sparke Helmore Lawyers. Ms Skobelkin-Mulcair appeared in person and gave evidence. Each party called two expert witnesses: Dr Leon Le Leu, an…

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: [2019] AATA 1054
Decision Date: 29 May 2019

CaseChat Overview and Summary

This matter concerned an appeal by Ms Skobelkin-Mulcair against a decision by Comcare regarding her entitlement to workers' compensation. The dispute centred on whether Ms Skobelkin-Mulcair's conditions, diagnosed as carpal tunnel syndrome (CTS) and a subsequent chronic pain condition, were contributed to by her employment to the requisite degree. The case was heard by Member Mark Hyman.

The court was required to determine the diagnosis of Ms Skobelkin-Mulcair's conditions, whether these conditions constituted "ailments" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), and crucially, whether these conditions were caused by her employment. The court also considered the reasonableness of medical treatment provided and whether Ms Skobelkin-Mulcair was incapacitated.

Member Hyman found that Ms Skobelkin-Mulcair suffered from CTS at least from the date of injury, and a second condition, variously described as chronic pain syndrome or occupational overuse syndrome. The court noted significant disagreement among medical experts regarding the diagnosis and causation of the second condition, highlighting the evolving understanding of chronic pain. Ultimately, the Member concluded that the medical evidence, despite its challenges, established that Comcare was liable to pay compensation to Ms Skobelkin-Mulcair under sections 16 and 19 of the SRC Act. Comcare was also ordered to pay Ms Skobelkin-Mulcair's costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Subsection 4(1) contains a definition of “medical treatment”. It includes (relevantly) medical or surgical treatment, by or under the supervision of, a legally qualified medical practitioner (paragraph (a)); or therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b)). Section 4(1) also defines “therapeutic treatment” to include treatment given for the purpose of alleviating an injury.THE EVIDENCE This matter turns almost entirely on medical evidence. That evidence comes from the applicant, in respect of her account of the onset and course of her symptoms; from the extensive medical records included in the documents before the tribunal; and from the reports and oral evidence of the four expert witnesses.The documentary record Ms Skobelkin-Mulcair worked at the CSIRO. She experienced the onset of symptoms in late 2006. Her general practitioner, Dr David Harrison, referred her to Dr Colin Andrews, a neurologist (T5) and Mr Mark Richard, a physiotherapist (T6), noting a probable diagnosis of right carpal tunnel syndrome (CTS). Dr Andrews confirmed CTS by nerve conduction studies (T7), finding the condition to be moderate to severe. The nerves of the left arm and the ulnar nerve on the right were normal. Ms Skobelkin-Mulcair claimed workers’ compensation on 10 January 2007 (T8) with the claimed condition being “right carpal tunnel syndrome”, the source of the injury identified as “repetitive computer work, typing and usage of a mouse as part of normal work duties”, and the date of first medical consultation as 7 December 2006. Despite interventions, Ms Skobelkin-Mulcair’s CTS did not resolve over the months that followed. On 8 November 2007 Dr Alastair Taylor, a plastic and reconstructive surgeon, identified the CTS as severe, although it is not clear if he did so on the basis of earlier nerve conduction studies or had more recent data to hand (T12, T13). He arranged for surgery, which he performed in either late December 2007 or early January 2008 (T14). The surgery was successful, and Ms Skobelkin-Mulcair no longer displayed the nerve compression symptoms of CTS, but she continued to suffer from some pain in the wrist. Dr Taylor urged her to use her right hand as much as possible so as to avoid “a reflex sympathetic dystrophy situation”. At six weeks after the operation, he thought that she had managed that outcome (T15). Over the months and years following surgery Ms Skobelkin-Mulcair continued to show symptoms, which were interpreted by her doctors in a variety of ways. An MRI dated 30 June 2008 found “a clear defect” within the midline of the flexor retinaculum, consistent with CTS decompression, but also noted a ganglion cyst in the wrist (T16). Dr Andrews did further nerve tests, finding them normal, and suggested that Ms Skobelkin-Mulcair’s continued symptoms related to overuse and might be a form of tendonitis (T17, dated 2 July 2008). Dr Taylor, in a report dated 7 August 2008 suggested that continued symptoms might derive from “blood related issues with mouse usage” (T18).

Decision

Reasons for decision

The medical evidence presented in this matter provided particular challenges. It is plain to me that medical science is still developing an understanding of chronic pain conditions. In that circumstance, especially, it is not helpful to a decision-maker to have medical evidence that represents what appear to be the poles of current opinion, rather than to hear from doctors who are prepared to debate the possibilities and not leap to certainties. CONCLUSION The decision under review is set aside. Comcare is liable to pay compensation to Ms Skobelkin-Mulcair under sections 16 and 19 of the SRC Act.COSTS Comcare must pay Ms Skobelkin-Mulcair’s party/party costs and disbursements, as agreed or taxed, in accordance with section 67 of the SRC Act and the tribunal’s “Taxation of Costs” Practice Direction dated 30 June 2015.

Ratio Decidendi

Legal Principle Established

In practice the matter turns on the medical evidence, and in particular on how that evidence throws light on questions of causation.CONSIDERATIONWhat is the diagnosis of Ms Skobelkin-Mulcair’s condition or conditions? The doctors, with the qualified exception of Professor Cohen, agree that Ms Skobelkin-Mulcair suffered from carpal tunnel syndrome at least until she had surgery for that condition. Professor Cohen thinks that she may never have suffered from that condition, and Dr Le Leu thinks she may still have residual symptoms; but Professor Cohen’s opinion appears to be not that she did not have the condition, but rather that the totality of the evidence stopped short of convincing him that she did. All other doctors accept that diagnosis without question. On the balance of probabilities, I find that Ms Skobelkin-Mulcair suffered from CTS at least from the date of injury. It seems to be also accepted that Ms Skobelkin-Mulcair suffered a second condition, variously identified as a chronic pain syndrome (Dr Kostos inserts the word “regional” in that label), an occupational overuse syndrome, or possibly a localised fibromyalgia. The doctors disagree strongly over the label that should be attached to this second condition, but agree on the basic properties of conditions of this kind: they are not associated with a frank physical injury or with direct trauma; they are not associated with any readily observable pathology; they are characterised by pain over the affected region; they are frequently persistent; and they may be refractory to treatment. Some of the doctors assert that this is the way a chronic pain syndrome is described, but Professor Cohen prefers to name the condition an occupational overuse syndrome (which, it appears, would settle questions of causation largely through the diagnostic process). Dr Kostos regards all occupational overuse diagnoses as unscientific and as misnomers for chronic pain syndromes. Although it would be possible to argue, as Mr Anforth proposes, that this second condition started as an occupational overuse syndrome and evolved into a chronic pain condition, none of the evidence appears to point persuasively to that evolution or transition, and that is not the evidence of Professor Cohen, the strongest advocate of an occupational overuse syndrome. The doctors are also in strong disagreement regarding causation, and that is strongly caught up in their diagnostic dissension. In the end, whether one label or the other is applied to this second condition is probably best decided after the question of causation has been settled. During the discussion that follows, for convenience I refer to this second condition as a chronic pain syndrome.Are Ms Skobelkin-Mulcair’s conditions ailments under the SRC Act? The SRC Act divides injuries under the Act into “diseases” and “injuries other than diseases” (the latter sometimes referred to as “frank injuries” or “injuries simpliciter”); the terms “disease” and “injury” for the most part are used in contexts that imply that the relevant nexus with employment has been established. The word “ailment” is used for a disease where that nexus is yet to be established.