Smith and Comcare (Compensation)

Smith and Comcare (Compensation) [2020] AATA 870 (17 April 2020)
Division:GENERAL DIVISION
File Number(s): 2018/5038
Re:Heidi Smith
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:17 April 2020
Place:Sydney

The decision under review is affirmed.
................................[sgd]........................................
Dr I Alexander, Senior Member
Catchwords
COMPENSATION – workers compensation – right lateral epicondylitis – whether employment significantly contributed to her ailment – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4A(1), 5A, 5B, 14
REASONS FOR DECISION
Dr I Alexander, Senior Member
17 April 2020

On 29 January 2018, Ms Smith lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
At that time, Ms Smith was employed by Services Australia (formerly known as the Department of Human Services) as an APS4 debt collection officer. She resigned from her employment on 12 February 2018, effective date from 30 April 2018.
Ms Smith claimed that she suffered an injury to her right arm, namely ”right tennis elbow” caused by “repetitive use of mouse and keyboard”. She claimed that she had first noticed symptoms on “02/09/2013, 12:00 PM”
On 28 March 2018, Comcare issued a determination denying liability to pay compensation pursuant to section 14 of the SRC Act for “resolved right elbow pain or aggravation thereof”.
In a reviewable decision, dated 21 May 2018, Comcare affirmed the determination of 28 March 2018.
Ms Smith is seeking a review of the decision dated 11 October 2017. She was self-represented and attended the hearing in person.
RELEVANT STATUTORY PROVISIONS
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) of the SRC Act to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B of SRC Act:
(1) In this Act:
“disease” means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1) of the SRC Act:
“ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“Impairment” is defined in subsection 4(1) of the SRC Act:
“Impairment" means the loss of the use, or damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
ISSUES
It is agreed that between November 2017 and March 2018, Ms Smith suffered pain in right arm consistent with a diagnosis of “right lateral epicondylitis”.
The respondent submits and the Tribunal agrees that the “right lateral epicondylitis” was an ailment within the meaning of the SRC Act.
Ms Smith contends that her employment significantly contributed to her ailment, a contention that is disputed by the Respondent.
Therefore, pursuant to subsection 5B(1) of SRC Act, the relevant statutory question is whether Ms Smith’s employment with Services Australia contributed, to a significant degree to her of “right lateral epicondylitis”.
EVIDENCE
Incident Reports
A report of incident of injury, dated 2 September 2013, describes the “injury” as “numbness, tingling and pain in right hand and arm, headaches”. Part of the body affected is noted as “right hand, arm shoulder and neck”. How the injury was sustained is noted as “sitting at work station”
A report of incident of injury, dated 16 November 2017, describes the “injury” as “continued and further pain in the right arm even when not using it now”. Part of the body affected is noted as “right arm”. How the injury was sustained is noted as “repetitive mouse clicking”.
Medical Evidence
Dapto Health Care Pty Ltd – 3 March 2014 - GP
The Tribunal was provided with a copy of the clinical notes of the GP Practice attended by Ms Smith from 3 March 2014 to 7 February 2019.
Between 3 March 2013 and 3 May 2017, there were no recorded issues with respect to any symptoms involving the right arm.
An entry on Saturday, 24 June 2017, it is recorded, inter alia, as: Last Sunday, riding scooter with Son. Fell onto grass, #[1] to left clavicle. In sling 3 weeks. Unable to work this week… clavicular fracture
[1] Symbol for “fracture”
The next entry dated 4 July 2017 is recorded, inter alia, as: fracture - left clavicle on sling repeat x-ray clavicle next week;
In the four subsequent consultations on 7 August 2017, 20 July 2017, 28 August 2017 and 28 August 2017, there were no recorded issues with respect to symptoms in the right arm.
On Monday, 23 October 2017, Dr Packiam recorded, inter alia: pt stressed out at work, not coping with that… states felt like that for a long time… dass21 12/7/9 – severe depression[2]
[2] I note that there is no reference to symptoms in the right arm
On Friday, 27 October 2017, Dr Packiam recorded, inter alia: pt is here for mental health treatment plan.[3]
[3] Ibid
On Friday, 10 November 2017, Dr Whitfield recorded as follows:
Weeks of right elbow pain and swelling laterally
Some swelling on left
Very active at work with typing
Discussed anti-inflammatories, heat, ice, exercises, changing activities at work
Reason for Contact:
Tennis Elbow
Actions:
Prescription added MOBIC CAPSULE 15mg 1 daily
An entry on 29 November 2017 is recorded, inter alia as: some improvement to tennis elbow…starting massage/physio… will continue heat… NSAID, ice, exercises in short term
Extracts form subsequent consultations as follows:
·2 January 2018: work have requested starting workcover case for right tennis elbow… initial symptoms 2011… flare late last year… discussed activity modification
·1 February 2018: mild improvement to elbow… diagnostic imaging requested
·9 February 2018: US confirms lateral epicondylitis… increasing physical therapy… restart NSAID… emotional at work… flare of work - has been off work
·14 February 2018: resigned from work. anxiety building… tennis elbow slowly improving
·26 February 2018: Physical and mental health improving. elbow symptoms settling now not working
Dapto Remedial Therapies: 1 December 2017 – March 2018
Extracts from the practice notes are, as follows:
·1 December 2017: Has had (R) tennis elbow on/ off for years. Now doing a lot of (R) hand work which aggravates it
·6 December 2017: Heidi feel less tenderness in (R) elbow
·12 December 2017: (R) elbow feels better
·19 December 2017: (R) elbow aches at times from work but feels looser
·9 January 2018: (R) elbow still aches at times even away from work
·17 January 2018: tight (R) side neck for the last week + headache… + needling
·24 January 2018: felt better for two days in (R) arm but now aching again… (R) forearm needling
·1 March 2018: hurt her lower back…. (R) forearm still painful at times but less frequent
DAPTO Osteopathic: 20 December – 26 April 2018
Extracts from practice notes, inter alia, as follows:
·2 December 2017: M. O’Connor - tennis elbow R onset 2 years… 6/12 clav fracture L, feels fine… tight in L shoulder
·9 December 2017: had massage. Still has pain -burns- along extensors
·20 December 2017: pain in R elbow returned after 2/7 days of work. Check L shoulder. Had massage yesterday… bruising around R Lateral epicondyle from massage
·6 January 2017: – pain in epicondyle improving… still painful in lower forearm
·27 January 2017: R arm still achey and burney – Heidi is responding bet slowly to TX for R lateral epicondylitis. Heidi has had 3 weeks off work at a computer and it has not changed… Query if she might respond to dry needling of the R forearm
·6 February 2018[4]: A. Pitt - R refearm burning pain 4-5/12 this episode. Started a couple of years ago from work.Has Just lodged WC claim… Works on computer all day… Dx lat epicondylitis – dry needling
·9 February 2018: N. Manwaring - Dry needling helped a lot for a day or two… no computer work this week but returning in 3 days[5] burning px - no numbness for a few weeks now
·13 February 2018: A Pitt - TT W me helped. Then was very sore after tt with Narelle. Improved after that
·20 February 2018: No sharp pain in R elbow now
·27 February 2018: R elbow is getting a lot quicker since ceasing work
·7 March 2018: arms[6] are 75%-80% better now – dry needling
·15 March 2018: Elbows[7] have been really good but had to do some computer work recently which has…[8]– dry needling
·21 March 2018: R elbow was going really well until pt had to do some computer work[9] 85% better – dry needling
·4 April 2018: R elbow pain only comes on now w typing. And it’s not too bad when it does – dry needling
·26 April 2018: R forearm is nearly 100% – dry needling
[4] I note that Ms Smith had now been on leave from work for about 4 weeks
[5] Ms Smith resigned and stopped working on 12 February 2018
[6] For reasons that are unclear both arms appear to have become involved in Ms Smith’s condition.
[7] Ibid
[8] The notes from Dapto Osteopathic Clinic on this date are incomplete.
[9] At this time Ms Smith was still on leave from work.
Imaging
An ultrasound examination of the right elbow was performed 5 February 2018. The clinical history provided to the radiologist is notes as “Long term elbow pain. Pain, tenderness and swelling to the ligaments near the lateral epicondyle”.
The findings were described as “the common extensor tendon is morphologically normal” with “mildly increased blood flow” in the tendon consistent with “mild lateral epicondylitis”. It was also stated that “the patient was noted to be tender while scanning over the common extensor tendon”.
An x-ray of the right elbow performed on 5 February 2018 is reported as normal with “no localised tissue swelling detected”.
An ultrasound of the right elbow performed on 8 November 2018 is reported as showing a “normal outline of the common and flexor tendons with no evidence of tendinosis or tear” with “no abnormality detected”.
Dr Shahzad – Consultant Occupational Physician
In a report dated 22 March 2018, Dr Shahzad stated, inter alia, as follows:
Ms Smith reports that she is currently employed at the Department of Human Services… her role centred on investigation searches, outbound calls with keying and mousing to input data... she used to work permanent part time from Monday to Friday from 9:20 am to 2:20pm working 25.30 hours per week.
Ms Smith reports that she had an issue with her right arm in 2013… She reports that she had right elbow pain along with numbness and tingling. She reports that she informed work recently. An incident report was logged. She has had injury prevention sessions and osteopathy sessions… also external ergonomic assessments. She reports that her condition has gradually worsened… despite changing keyboards and using the numeric pad on the left side she was still suffering from right elbow pain… also pain in the right hand from constant mouse use and increased computer activity. She reports that she noted a flare-up of her symptoms in October 2017… she has been putting up with pain…
In January 2018, she took three weeks leave… she noted her condition was not getting better… she subsequently resigned… she is currently on half-pay leave… She reports that her right elbow is feeling much better… She had osteopathy and remedial massage therapy on a twice-weekly since January 2018.
Bilateral elbow joint examination identified normal range of movement on flexion and extension. There was no localised tenderness over the lateral and medial epicondyle. Resisted right wrist flexion and extension did not reproduce any pain… Further specialised testing for golfer’s elbow test and tennis elbow test was normal. There was normal supination and pronation noted bilaterally in both elbow joints.
Summary and Assessment
Ms Smith is… a Service Officer at the Department of Human Services… She reports a long-standing history of right tennis elbow, repetitive injury with a recent flare-up in October 2017. She reports ongoing self-management of her condition. … She reports significant improvement in her right elbow following further treatment… On clinical examination, she presented with normal examination findings with no signs of tennis elbow or ongoing right elbow injury… Ms Smith claims that she has been self-managing her condition for the last ten years.
In response to various questions asked by the Respondent, Dr Shahzad stated, inter alia, as follows:
I am unable to verify a long-standing history of recurrent right tennis elbow since 2013.
Ms Smith is currently fully recovered… On today’s assessment, Ms Smith has no clinical signs identifying right tennis elbow or common extensor origin tendinopathy.
The causative factors reported by Ms Smith include repetitive computer use and using a mouse in her right hand. Tennis elbow is usually associated with repetitive forceful wrist movements especially in extension. She works in a predominantly office-based role. There may be some contribution to her presentation of a right tennis elbow. However, there is a lack of history with a long-standing claim of ten years. There is no imaging provided on today’s assessment to support a past diagnosis of common extensor origin tendinopathy. Today’s clinical examination is normal. I am unable to identify the causative factors leading to the progression of her alleged diagnosis.
Ms Smith’s employment is not considered to be a significant contributing factor to her current presentation… I am unable to identify work-related causation for her diagnosis.
Professor P Youssef – Consultant Rheumatologist
In a report dated 9 August 2019 Professor Youssef stated, inter alia, the following:
Thank you for asking me to provide a medicolegal report on Ms Heidi Smith whom I interviewed on… 1 August 2019.
She began working in the Department of Human Services in June 2002. She said that her work was computer based and all programmes were on-line… She transferred to the Child Support Agency in 2016… this was part-time work on 5 days a week. She worked 5 or 6 hours a day on 4 days and a full day on Thursdays. She would start work at 9.20 am and finish at 2:20 pm, apart from Thursdays when she finished work at 5. 20 pm. She would take half an hour break for lunch and a 5 minute break every hour.
In 2013 she developed discomfort over the lateral aspect of the right elbow.[10] She said that she accessed prevention injury management and was given 6 treatments of physiotherapy… She said that she continued to experience a niggle over the right elbow form that time … She did not seek physiotherapy and did not consult a medical practitioner and did not take any medication for pain.
Towards the end of 2017 she developed increasing pain over the lateral aspect of the right elbow. She said that a new computer programme had been introduced about 6 months earlier and that this programme would freeze regularly and that she was required to click the computer mouse more frequently.
She consulted Dr Whitfield in Dapto and underwent an x-ray and ultrasound which she said showed “minor inflammation”. She began applying cream to the right elbow and was treated with Panadol and Nurofen… She was placed on a Care Plan to gain access to physiotherapy which she received at Dapto Osteopathy. She also received remedial massage. She said that this provided some relief. She took 2 weeks of recreational leave (she was not sure exactly when this was taken) without benefit. She said that “it was feeling better” and that she was “not in tears’ a couple of months after she began receiving treatment. She said she was able to do housework again… She lodged a claim in January or February 2018. [11] She resigned at the end of January 2018 because of symptoms.[12]
She reports discomfort over the lateral aspect of the right elbow which is present every day and which she rates on average a 2/10 in severity with zero being no pain and 10 being the worst pain possible.
She fractured her clavicle one year prior to the onset of the symptoms after falling off a downhill scooter.[13] She required some time off work.
Examination - There was tenderness over the lateral aspect of her right elbow and over the epicondyle. There was no effusion in the right elbow and there was full range of movement of the right elbow. There was no discomfort on resisted extension of the right middle finger or right wrist… There was no abnormality on examining the left upper limb… There was normal power, tone, reflexes and sensation to touch and pinprick in the upper limbs.
[10] I note that this description is not consistent with description noted in the injury report of 2 September 2013, p 16 above.
[11] Claim lodged 29 January 2018.
[12] Section 37 Documents: page 47 (Attendance Calendar) and page 29 (Timeline of events): From 23 December 2017 and 12 February 2018 Ms Smith appears to have on leave and attended work on only 3 days, 29-31 January 2017.
[13] Supplementary Section 37 Documents page 32: Entry by Dr Whitfield – Date of injury of left clavicle 18 June 2017.
After a detailed review of the available documentary evidence, Professor Youssef’s summary and assessment was, inter alia, as follows:
Ms Smith reports that she first developed symptoms in 2013. I note that an early intervention treatment plan dated 20 October 2012[14] documents the presence of cervical pain and arm pain due to desk work. The presence of a combination of cervical pain and arm pain makes it unlikely that this pain was due to lateral epicondylitis. Lateral epicondylitis is localised over the right elbow and is not associated with cervical pain unless there are 2 separate conditions, one involving the cervical spine and the other involving the elbow. Lateral epicondylitis presents as elbow pain rather than cervical and arm pain and is usually easy to diagnose because of the localisation of pain. Ms Smith told me that she continued to experience symptoms of this condition on an intermittent basis and that she reported this condition to her supervisors. There is no documentation in the files available to me of her making a report of right arm pain since 2013 and prior to the current claim.
From the history obtained from Ms Smith I found it difficult to determine the exact onset of the right elbow pain. She said that it began after there was a change made to the computer programme at her work. However, there is no mention of discomfort in the right elbow in the general practitioner’s notes prior to 10 November 2017. There was a consultation on 23 October 2017 documenting ting Ms was stressed at work. I note that medical certificates document the date of injury as being October 2017 although Ms Smith reports that her symptoms began a few weeks earlier than this time and steadily increased in severity.
In a consultation with a psychologist dated 5 April 2017[15], it is documented that Ms Smith was finding her role mentally more difficult. There was no documentation of any physical symptoms during that consultation
…
I note that she fractured left clavicle in June 2017 whilst on holidays. This would have caused her to favour the right upper limb as she was required to place her left hand in a sling for some time. This is likely to have resulted in in the development of right lateral epicondylitis. The new patient information from the Dapto remedial Therapies dated 1 December 2017[16] documents a six month history of left shoulder problems. Even though this form also documents that there has been tennis elbow for a few years which was getting worse, there is no documentation in the general practitioner’s note of any prior symptoms of right tennis elbow. Therefore, although the onset of the severe right elbow pain is unclear, she appears to first complain of it to her general practitioner on 10 November 2017 and it is likely to have started when she was favouring the right upper limb because of an injury to the left shoulder.
The diagnosis of right epicondylitis appears to be clear. She reported the typical symptoms of this condition. An x-ray of the right elbow performed on 5 February 2018 was normal which is usually the case with right lateral epicondylitis. An ultrasound of the right elbow performed on 5 February 2018 showed morphologically normal common extensor tendon. This is consistent with mild epicondylitis. In particular, there was no evidence of swelling of the tendon or a tendon tear which would signify more sever disease.
Ms Smith resigned from her work in February 2018. Although she told me that this was due to the lateral epicondylitis her resignation note[17] does not mention this condition.
The natural history of lateral epicondylitis is for improvement and this appears to be the case with Ms Smith. The progress notes from the Osteopathic Clinic document that by 26 April 2018 the right forearm was nearly 100%. Furthermore, by the time she is seen by Dr Shahzad on 22 March 2018, this condition appears to have virtually resolved. He does not find any significant abnormalities in the right lateral epicondyle and in particular, there was no tenderness or discomfort on resisted extension of the right wrist which one would expect with active epicondylitis. Furthermore, an ultrasound of the right elbow performed on November 2018 was documented as being normal, consistent with resolution of this condition.
…
With regards to whether this condition was caused by her workplace, I have enclosed two publications. The first is a review of occupational factors by Shiri and Viikari-Juntura. Lateral and Medial Epicondylitis: Role of Occupational Factors, Best Practice and Research Clinical Rheumatology, 2011; 25: 43-47 in which it is documented that epicondylitis is a common condition that affects women more than men. It is documented that “there is little evidence to support the role of occupation in epicondylitis’ but that forceful activities with high force combined with high repetition or awkward posture were possibly associated with epicondylitis. Ms Smith’s occupation would be classified as either light physical exertion or sedentary and would not place her at risk of developing epicondylitis. Ms Smith’s tasks did not require repetitive forceful elbow movements.
[14] Section 38AA Documents: page 1
[15] Ibid: page 7
[16] Ibid: page 21
[17] Section 37 Documents: page 84

In response to specific questions asked by the Respondent, Professor Youssef stated, inter alia, as follows
It is my opinion that she did not have right lateral epicondylitis on 2 September 2013… It is unclear as to exactly when she began to experience significant symptoms… I think it is likely that the symptoms began in and around June 2017 at the time when she was using her right hand more because of a non-work related injury to the left clavicle. It is likely that activities outside of work caused her symptoms as she had always used the mouse in her right hand and injuring the left shoulder would not have affected the work activities involving her right hand.
I do not consider that her condition was contributed to by her employment…. I think that the lateral epicondylitis is probably related to other activities such as home duties where there would be more forceful elbow movements required at a time when she was unable to use her left upper limb because of an injury. Furthermore, she developed her symptoms when she was working part time which also makes it less likely that the symptoms were related to her work. [18]
I do not think that she currently has significant right lateral epicondylitis…
[18] Ibid at 11: It appears that between 18 June 2017, the date on which Ms Smith fractured her left clavicle, and 10 November 2017, the date on which saw her GP with respect to right forearm pain, she was on leave and not at work on about 60% of calendar days.
In his evidence in chief, Professor Youssef, who attended the hearing by telephone, confirmed his opinion that Ms Smith suffered ‘mild lateral epicondylitis of the right elbow”. He based his opinion on his clinical assessment and the ultrasound report of 1 February 2018.
Professor Youssef also confirmed his opinion that Ms Smith’s employment was not a significant causal factor in respect of Ms Smith’s condition.
Professor Youssef confirmed that “lateral epicondylitis” also known as “tennis elbow” requires forceful extension at the wrist which puts stress on the common extensor tendon. He stated that use of a computer and clicking of a mouse, although repetitive was not “forceful” activities referred to in the review document noted above[19] which stated “there is little evidence to support the role of occupation in epicondylitis generally, but there may be some possible association with high repetition and high force movement”
[19] Paragraph 38
With reference to Ms Smith’s claim that in October/November 2017 she suffered severe pain associated only with the use of a computer and mouse, Professor Youssef stated that:
If someone had lateral epicondylitis then one would expect symptoms with other activities which required forceful elbow extension… and I wouldn’t expect significant discomfort just with using a mouse, and I wouldn’t expect that that would be the only activity that would cause discomfort, and no other activities.
When asked about Ms Smith’s massage and osteopathic treatment, Professor Youssef explained “epicondylitis tends to get better over time, even without treatment” and stated that he was not aware of any good studies that demonstrate that “dry needling” is helpful and that this is not treatment that is generally recommended by rheumatologists. He added that was not aware of any data that “rubbing something over the epicondyle, massaging the epicondyle making any difference either” but did recommend stretching and strengthening exercises.
With respect to the symptoms, described by Ms Smith in 2013, Professor Youssef confirmed that in his opinion these symptoms were not consistent with a diagnosis of epicondylitis.
When asked about Ms Smith’s oral evidence at the hearing that in October 2017, while at work, she suffered a fairly sudden onset of severe right forearm pain which persisted for several weeks despite a reduction in workload and computer work activities, Professor Youssef indicated that he would not expect this kind of presentation in someone who had lateral epicondylitis. Professor Youssef stated that he was unable to explain the pattern of symptoms described by Ms Smith
With respect to the two ultrasound reports Professor Youssef stated that in patients with epicondylitis would not have normal ultrasounds. With severe epicondylitis and one would expect to see swelling of the tendon and other abnormalities such as tears and that it would not be just “an increase in vascularity’
With respect to Ms Smith’s fractured left clavicle, Professor Youssef confirmed the opinion the opinion he stated in his report that her mild right lateral epicondylitis was probably due to her favouring the use right arm.
In response to a question from Ms Smith, as to whether repetition alone and a sitting posture could cause epicondylitis, Professor Youssef stated that “normally with the use of a mouse the hand is often resting on the mouse so there is no forceful activity backwards”. He added that “posture doesn’t normally affect mouse use in the way that it would lead to development of epicondylitis, because just the use of a mouse your hand is sitting on the mouse, and often in a flexed position rather than holding it in a forced extensor position, because to do that you have to take the mouse off the desk”.
Professor stated his practice he has many patients who work in offices and does see “epicondylitis due to mouse use”.
Ms Smith’s Evidence
In a statement, dated 25 April 2018, as part of a reconsideration request Ms Smith stated, inter alia, as follows
The report states work did not contribute to my right tennis elbow injury. If this were the case why after NOT using my right arm at work for weeks and having treatment on it has it gotten better? It is a repetitive strain injury and this role that I had been doing for 15 years was the contributing factor with MAJOR daily repetitive use.
…
I reported the injury when it flared up and became chronic late last year however, I did not lodge a claim initially as had no idea the pain be that bad ongoing and take so long to heal. I was hoping it would rectify itself after minimal treatment and rest … My work with the department was the cause of my injury and they should be liable for the costs of treatment of my injury.
In an undated statement filed with the Tribunal on 16 December 2018 Ms Smith stated ,inter alia, as follows:
Please note, I am claiming from October 2017. When completing the incident report online on of the questions ask something along the lines of when did the injury first occur. The honest and correct answer was in 2013 when I first started experiencing this pain whilst at work… I am pressing the matter from 2017 when pain became severe and I was forced to seek treatment.
…
My work tasks constantly and repeated stressed the part of my arm that became injured and put me at greater risk of suffering repetitive injury when compared with those people who do not perform those work tasks… Regardless of any label that may be placed on my injury, the facts remain that over a period of 15 years of computer based/heavy moused based work I developed significant pain that ran down my right arm and top of my right elbow area which flares up when doing computer based work, to the point where it was constant.
At the hearing Smith confirmed that she first suffered symptoms in her right arm, shoulder and neck in 2013 whenever she was “using computers”. She stated that with some osteopathic treatment her symptoms improved but that she continued to experience intermittent symptoms which she described as “mild burning in my arm” until about October 2017 when she suffered increasing pain in her forearm.
Ms Smith confirmed that in October 2017, she was finding her work difficult and stated that “I always would feel quite over whelmed with my– our work load because it’s a highly stressful job and there’s a huge amount of workload I wasn’t getting through it at my normal proficiency” because of the pain in her arm.
Ms Smith agreed that following an ergonomic assessment her duties had been modified in order to assist her ability to continue at work.
When asked about the report provided by Dr Shahzad, Ms Smith indicated that he had recorded and was fairly dismissive of his assessment and opinion because “he only saw me for 10 minutes.”
Ms Smith told the Tribunal that there was a period of a “good couple of weeks” when her arm was “excruciating painful.” In response to questions from the Tribunal, for clarification, Ms Smith said that “I was always in pain” but in on one afternoon in October 2017 “I was at work and it just became really, really painful”, however, notwithstanding the claimed severity of her symptoms she did not take any time off work.
When asked why, on 23 October 2017, when she was seen by Dr Packhiam, Ms Smith was unable to explain why she had told the doctor that “she was stressed out at work, not coping with that states like that for a long time” and had not mentioned right elbow or right arm symptoms.
When asked about the report provided by Professor Youssef, Ms Smith agreed that the recorded information was correct and that stated that “he was pretty thorough”.
When asked about the fractured left collar bone she suffered on 18 June 2017, Ms Smith was uncertain about how long her left arm was in a sling but agreed that it was about it was probably about 6 to 7 weeks and that during that time she had to do everything with her right arm. She added that in fact returned to work with her left arm in a sling.[20]
[20] Ibid at 11: It appears that between 18 June 2017 and 21 August 2010 Ms Smith was on leave and not at work for 22 days out 75 about 30% of calendar days.
In response to a question from the Tribunal, Ms Smith agreed that, after her employer had been informed about her right arm pain, she was not expected to do her normal duties and that her modified duties involved much less computer work.
Notwithstanding the modified duties, Ms Smith stated that her symptoms did not improve until she stopped work and completed her osteopathic treatment in April 2018. She also stated that currently she still gets symptoms like “a burn achy feeling” within 20 to 30 minutes of using a computer or driving. However, she is able to do all her domestic and other activities without experiencing pain.
CONSIDERATION
The evidence before the Tribunal clearly demonstrates that between November 2017 and April 2018, Ms Smith suffered pain in her right arm. The weight of the medical evidence supports a diagnosis of “mild right lateral epicondylitis”.
Ms Smith contends that she first suffered pain in right arm at work in 2013 and that since that time she has had intermittent pain with a significant “flare-up” in October 2017.
Ms Smith claims that between October 2017 and February 2018, while at work, she suffered increasing severe pain in her right arm which she attributes to her computer use with “repetitive mousing and keying”.
Ms Smith contends that her epicondylitis was caused by her computer use at work and did not resolve until after she resigned from her employment.
In her evidence, Ms Smith implied that she had suffered epicondylitis in 2013 and that she had a chronic condition which was aggravated in 2017 by the particular circumstances of her employment.
The difficulty for Ms Smith is that the weight of the medical evidence does not support her contention. There is no corroborative evidence to support Ms Smith’s belief that she had chronic epicondylitis.
In fact, apart from her own analysis of the significance of the temporal relationship between her employment and her symptoms, there is there is no convincing independent evidence to support her claim.
Furthermore, there are inconsistences between Ms Smith’s reporting of her symptoms and contemporaneous clinical notes which are unexplained. It is not clear when she actually started to experience pain in the right arm. She did not present to her general practitioner, with right arm pain, until 10 November 2017, despite consultations in October 2017.
Ms Smith‘s leave records show that in the period from the beginning of October 2017 to the 12 February 2018, when she stopped work, she was working part-time on leave about 35% of calendar days.
Another difficulty for Ms Smith is that there is no convincing evidence to explain the claimed severity and persistence of her symptoms. Ms Smith claims that her symptoms did not improve until after she stopped working. However, I note various documents before the Tribunal reveal that her more active treatment with physiotherapy and osteopathy coincided with her time off work.
In his report of 22 March 2018, Dr Shahzad could find no clinical evidence of right lateral epicondylitis and stated that he was “unable to identify any particular work factors” that contributed significantly to her “symptomatic presentation”. He expressed the opinion that Ms Smith’s employment cannot be considered to be a significant factor in her clinical presentation.
At the hearing, Ms Smith was quite dismissive of Dr Shahzad’s report because of some factual errors and because the consultation had lasted only “10 minutes”.
As Dr Shahzad was not required to give oral evidence it is difficult for the Tribunal to assess Ms Smith’s complaints.
However, I note that the substance his report was not that dissimilar from the report provided by Professor Youssef, which Ms Smith acknowledged was “very thorough”.
Professor Youssef’s report of 9 August 2019 and his oral evidence was quite comprehensive and as I have noted the relevant aspects of his evidence, in some detail above, I do not intend to repeat it all again.
Professor Youssef acknowledged that Ms Smith’s right arm pain was consistent with a diagnosis of “mild lateral epicondylitis,” but found it difficult to determine the time of onset of the pain.
Professor Youssef expressed the opinion that the fracture of the left clavicle in June 2017 would have caused Ms Smith to favour the right upper limb and that this was “likely to have resulted in the development of right lateral epicondylitis”.
Professor Youssef referred to relevant literature and concluded that Ms Smith’s employment did not significantly contribute to her epicondylitis. In particular, he stated that typing and repetitive mouse use was not a likely the cause of her lateral epicondylitis and was probably related to other activities such as house duties.
CONCLUSION
On consideration of the available evidence, I am satisfied that Ms Smith, while at work suffered intermittent temporary increased pain in her arm because of her underlying lateral epicondylitis.
However, I am not persuaded that the available evidence points to a conclusion that Ms Smith’s lateral epicondylitis was contributed to, to a significant degree, by her employment.
In reaching my decision, I have preferred the evidence and opinions of Professor Youssef which was unchallenged and quite persuasive.
It follows, that I am satisfied that Ms Smith did not suffer an injury for the purposes of the SRC Act.
DECISION
For reasons set out above, the Tribunal is satisfied that Ms Smith did not suffer an injury as an employee of Services Australia and, therefore, is not entitled to compensation pursuant to section 14 of the SRC Act.
The decision under review is affirmed.

[2020] AATA 870

17 April 2020

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction

Appeal