Smith and Comcare (Compensation)
[2019] AATA 927
•20 May 2019
Smith and Comcare (Compensation) [2019] AATA 927 (20 May 2019)
Division:GENERAL DIVISION
File Number: 2017/6154
Re:Julieann SMITH
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member M East
Date:20 May 2019
Place:Perth
The decision under review is affirmed.
.................................[sgd].......................................
Member M East
CATCHWORDS
WORKERS’ COMPENSATION – Commonwealth employee – physical injury – liability accepted – reconsideration of own motion – whether treatment related to compensable injury – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(a), 4(1)(a), 5A(1), 14(1), 16, 16(1), 24, 54, 60, 62(1), 64(1)(a), 71
CASES
Lees v Comcare (1999) 56 ALD 84
Stitt v Comcare [2018] AATA 3092
REASONS FOR DECISION
Member M East
20 May 2019
HISTORY OF CLAIM
The Applicant was employed by the Australian Tax Office (ATO) from 5 May 2000 until
31 July 2014 when she agreed to accept a bonafide voluntary redundancy (Exhibit R1, p.3).
The Applicant was subsequently employed by the Australian Bureau of Statistics from March 2015 until July 2015, and was later employed in a call centre for a windscreen company from December 2016 until July 2017 (Transcript, p.10). From October 2015 until July 2016, the Applicant was incarcerated in Boronia Correctional Facility (Transcript, p.11).
On 24 September 2001, the Respondent made a determination accepting liability in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
(the SRC Act) for ‘lateral epicondylitis (right)’, with a listed injury date of 19 July 2001(T7, p.33).
On 17 June 2003, the Respondent made a determination accepting liability in accordance with s 14 of the SRC Act for the Applicant’s ‘FCR tenosynovitis and ganglion’, as secondary conditions of the Applicant’s previously accepted condition of lateral epicondylitis (right) (T107, p.280).
On 20 June 2006, the Respondent made a determination accepting liability in accordance with s 14 of the SRC Act for a secondary condition, ‘lateral epicondylitis, left’ (T66, p.125).
On 2 August 2011, the Respondent made a determination accepting liability in accordance with s 14 of the SRC Act for the Applicant’s ‘de Quervain’s tenosynovitis’ (T76, p.152). It was determined that the Applicant was entitled to receive a payment under s 24 of the SRC Act for the total permanent impairment of 10% which she suffered as a result of this condition (T77, p.154-155).
On 14 October 2016, the Respondent made a determination accepting liability in accordance with s 16 of the SRC Act for the payment of the Applicant’s consultation with a hand specialist (T2, p.10).
On 15 December 2016, the Respondent made a determination accepting liability in accordance with s 16 of the SRC Act entitling the Applicant to undergo various procedures recommended by Mr Keogh, Orthopaedic Upper Limb Surgeon. The procedures approved consisted of an X-ray of the right hand, EMG studies of the right arm/median nerve, right thumb ultrasound with steroid injection, and an MRI of the neck (T2, p.12).
On 13 July 2017, the Respondent made a determination accepting liability under s 16 of the SRC Act for the Applicant to undergo the surgery recommended by Mr Keogh, being a ‘Right Thumb, A 1 Pulley Release’ (the A1 pulley surgery) (T2, p.14).
On 21 July 2017, the Applicant underwent the A1 pulley surgery (T96, p.193).
On 13 September 2017, the Respondent undertook a reconsideration of its own motion, and revoked its determination dated 13 July 2017 (T2, p.16-17, see also T101, p.203). The Respondent found that compensation was not payable to the Applicant for the
A1 pulley surgery under s 16 of the SRC Act (T2, p.16-17, see also T101, p.203)
(the reviewable decision).
On 10 October 2017, the Respondent advised the Applicant that an overpayment had occurred by reason of liability being revoked for the A1 pulley surgery, and advised that the Applicant is obliged to pay back the overpaid amount to the Respondent. A write-off of the overpayment has been made pending the outcome of these proceedings
(T104, p.208-209).
On 17 October 2017, the Applicant filed an Application for a Review of Decision with the Administrative Appeals Tribunal (the Tribunal) for a review of the reviewable decision
(T2, p.5-9).
THE HEARING
The application was heard by the Tribunal on 13 February 2019. The Applicant represented herself and the Respondent was represented by Mr Hawker and Ms Jones-Bolla of Sparke Helmore Lawyers (Transcript, p.1).
At the hearing the Tribunal heard from the following witnesses:
·The Applicant; and
·Dr Hanrahan, Consultant Physician, Rheumatologist.
At the hearing, the Tribunal admitted into evidence the following documents:
·The Applicant’s Submission in reply to the Respondent’s Statement of Issues, Facts and Contentions (Exhibit A1);
·The Applicant’s ‘Statement of Service’ dated 8 February 2019 together with a Notice under s 71 of the SRC Act sent by the Respondent dated 30 January 2019 (Exhibit R1);
·Report of Dr Hanrahan dated 25 January 2018 (Exhibit R2);
·Section 37 T-Documents (Exhibit R3);
·Referral letter to Dr Hanrahan dated 18 January 2018 (Exhibit R4);
·Two diagrams provided by Dr Hanrahan demonstrating the mechanism of de Quervain’s disease and the A1 pulley condition (Exhibit R5).
THE LEGISLATION
Section 16(1) of the SRC Act relevantly provides:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The definition of ‘medical treatment’ is provided for by s 4 the SRC Act. Relevantly,
s 4(a) of the SRC Act defines ‘medical treatment’ as including ‘medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner’.
‘Injury’ is defined in s 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.
Comcare’s general liability to pay compensation is set out in s 14(1) of the SRC Act which relevantly provides that:
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 ISSUES
The Respondent identified the issues as whether the Applicant is entitled to compensation for the A1 pulley surgery, being treatment obtained in relation to the Applicant’s accepted conditions of ‘lateral epicondylitis (right); lateral epicondylitis (left); de Quervain’s tenosynovitis (right); and FCR tenosynovitis and ganglion’ (Respondent’s Statement of Issues, Facts and Contentions (the Respondent’s SoFIC), [2.1]). This requires a consideration of whether the surgery is medical treatment, whether it was obtained in relation to her accepted conditions, and whether it was treatment that was reasonable in the circumstances (Respondent’s SoFIC, [2.1]).
Mr Hawker advised at the hearing, and also conceded in the Respondent’s SoFIC (at [4.2]), that the surgery was medical treatment as defined in s 4(1)(a); and that the treatment was reasonable in the circumstances. The Respondent cited the recent decision of Deputy President Boyle in Stitt v Comcare [2018] AATA 3092 as an example of the numerous authorities which have sought to consider whether a particular treatment would be considered reasonable for an employee to obtain in the circumstances.
The Respondent acknowledged that if the Tribunal did accept that the A1 pulley surgery was treatment obtained in relation to the Applicant’s accepted conditions, the Respondent accepts that the A1 pulley surgery would then be treatment that was reasonable for the Applicant to obtain in the circumstances (Respondent’s SoFIC, [4.10]). However, the Respondent made note that it was not conceded that the A1 pulley surgery was treatment obtained in relation to the Applicant’s accepted conditions (Respondent’s SoFIC, [4.9]).
The Respondent therefore submitted that the issue in dispute was whether the surgery was obtained in relation to the accepted conditions.
The Tribunal’s Jurisdiction
Section 64(1)(a) of the SRC Act authorises the Tribunal to review a reviewable decision made by the claimant. Section 62(1) of the SRC Act provides that a determining authority, defined by s 60 of the SRC Act as the person who made the determination, may on its own motion reconsider a determination made by it. ‘Determination’ is defined by s 99 of the SCR Act as including a decision or requirement; and is further defined by s 60 of the SCR Act as meaning:
a determination, decision or requirement made under section 8, 14, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 24, 25, 27, 29, 29A, 30, 31, 34, 36, 37 or 39, under paragraph 114B(5)(a) or under Division 3 of Part X.
The reviewable decision, as noted in paragraph 11, was a reconsideration by the Respondent of its own motion under s 62(1) of the SRC Act. The reviewable decision revoked the previous determination of the Respondent dated 13 July 2017 finding that compensation was payable to the Applicant for the A1 pulley surgery under s 16 of the SRC Act (T101, p.203).
The Respondent argued that the basis of the reviewable decision was that the A1 pulley surgery was not in relation to the Applicant’s accepted, compensable, conditions (Respondent’s SoFIC, [4.3]). The Respondent further argued that the Tribunal did not have jurisdiction to consider whether the condition for which the Applicant underwent the A1 pulley surgery to rectify was an ‘injury’, as defined by the SRC Act. This submission by the Respondent was made on the basis that no claim for that injury had been made pursuant to s 54 of the SRC Act, and no determination or reconsideration had been made by the Respondent in relation to the right thumb A1 pulley triggering (the A1 pulley condition).
The Tribunal agrees with this submission by the Respondent, and relies on the authority of the Federal Court in Lees v Comcare (1999) 56 ALD 84, 91 (Respondent’s SoFIC, [4.4]). The only issue before the Tribunal is whether the A1 pulley surgery relates to an ‘injury’, as defined under the SRC Act. As noted above, ‘injury’ is defined in section 5A of the SRC Act as one that is suffered by an employee arising out of, or in the course of, the employee’s employment. No claim has been made by the Applicant for the A1 pulley condition to be accepted as an injury, and no review process has been entered into that would otherwise trigger the Tribunal’s jurisdiction to consider whether the A1 pulley condition is an ‘injury’, as defined by the SRC Act.
The issue for the Tribunal is therefore confined to whether or not the A1 pulley surgery obtained for the A1 pulley condition was obtained in relation to the accepted conditions.
Medical Evidence
As noted above, the Applicant has several compensable conditions which have been accepted by the Respondent. These are:
·Lateral epicondylitis (right), date of injury 19 July 2001 (T7, p.33)
·FCR tenosynovitis and ganglion, as secondary conditions to the condition of lateral epicondylitis (right), date of injury 17 June 2003 (T107, p.280)
·Lateral epicondylitis (left), date of injury 20 June 2006 (T66, p.125)
·de Quervain’s tenosynovitis (right), date of injury 2 August 2011 (T76, p.152).
The Applicant also made a claim for medical costs associated with right and left shoulder symptoms in 2009 and 2010. The Respondent denied liability for these claims on the basis that there was no relationship established between the lateral epicondylitis (left and right) and the condition involving her right shoulder (T69, p.131).
The Applicant was referred by her general practitioner to Mr Angus Keogh. Mr Keogh provided a report dated 1 November 2016 (T84, p.173). He describes her symptoms as:
She has six to nine months [sic] worth of symptoms in her right hand with basal thumb discomfort associated with altered sensation into the median nerve territory of her right hand. She has also noticed some catching symptoms in her thumb, particularly flexion extension range but also palmar abductor range can trigger her symptoms. I note her signatory of background history of a long standing workers [sic] compensation claim relating to her right wrist. She had previous surgery under Allan Wang’s care.
Clinically today she exhibits symmetrical range of movement in her wrist. There is some tenderness about the wrist generally to palpation. More specific enquiries with regard to the affected regions today exhibit positive grind test with discomfort in the mid carpal joint of the thumbs. Also some discomfort through the STT joint itself. She has a painful nodule at the A1 pulley level of the thumb with no over triggering today. Peripheral nerve examination reveals altered sensation in the median nerve territory including the ring through the thumb but sparing of the middle finger. There is altered sensation in the C6 distribution of the forearm. Elbow flexion and extension is strong as is wrist extension today. She has negative tinel’s at the level of the wrist and also at the level of the elbow. She has good power of the thenar’s and also the intrinsics for the hand.
DIAGNOSIS
·Right thumb trapeziometacarapal arthritis plus or minus STT arthritis.
·Barely triggering right thumb A1 pulley.
·Probable carpal tunnel syndrome although atypical clinical features.
Mr Keogh organised for the Applicant to undergo nerve conduction studies, the results of which returned normal. Mr Keogh further referred the Applicant for an X-ray and ultrasound of the right hand. The findings were (T87, p.177):
X-RAY RIGHT HAND
Findings: No bone, joint or soft tissue abnormality is identified. There is no evidence of an erosive arthropathy. There is no soft tissue calcification.
ULTRASOUND RIGHT HAND
Findings: There is thickening of the flexor tendon sheath of the right thumb and this is most marked in the region of the A1 pulley at the level of the 1st metacarpophalangeal joint. The other flexor tendons are intact. No other abnormality is identified. There is no evidence of an arthropathy.
Comment: Flexor tenosynovitis with tendon sheath thickening, most marked in the region of the A1 pulley.
At the time the Applicant underwent injection therapy to the right thumb, and it was reported that she responded well. The report of Mr Keogh dated 15 November 2016
(T88, p.178) also refers to probable C6 radiculopathy and very early degenerative changes to the STT joint. Mr Keogh reported that he was also arranging an MRI for the Applicant’s neck in order to exclude a significant proximal compressive lesion.
He recommended that the Applicant continue with conservative treatment.
Mr Keogh again reviewed the Applicant on 16 February 2017, and in addition to his earlier diagnosis further diagnosed her with a ‘right C6 nerve root foraminal impingement – mild’ at the level of the right C6 exiting nerve root (T90, p.181).
He again recommended non-operative treatment, and advised that if her A1 pulley condition flares again that she undergo the A1 pulley surgery.
Mr Keogh reviewed the Applicant on 28 June 2017 and stated:
I reviewed this lady with regard to her right thumb again today. She is having ongoing problems with A1 pulley triggering in spite of a recent injection.
I have organised for her to undergo an A1 pulley release and this will occur at her earliest convenience. (T92, p.185)
On 7 July 2017, the Respondent wrote to Mr Keogh explaining that further information was required to determine whether the Respondent was liable to cover the costs of the
A1 pulley surgery, and requesting a report from Mr Keogh providing the Respondent with the following details (T93, p.186):
1.What has led to the need for the procedure and what is the relationship between the procedure and Miss Smiths [sic] compensable condition of lateral epicondylitis (right)?
2.What are the Item [sic] numbers and approximate costs for A1 Pulley Release procedure based on the Australian Medical Association Rates?
3.Any expected rehabilitation or treatment needs following the procedure?
On 13 July 2017, the Respondent accepted liability for the A1 pulley surgery (T95, p.190).
The Applicant underwent the A1 pulley surgery on 21 July 2017, where Mr Keogh performed an A1 pulley release to the right thumb and noted a finding of ‘Tendinopathic FPL tendon at the level of the A1 pulley’ (T96, p.193).
Mr Keogh reviewed the Applicant on 31 July 2017 and reported that the Applicant was doing ‘very nicely’ after her surgery. Mr Keogh reported that the Applicant’s wrist symptoms had flared up a little after the A1 pulley surgery, which he noted that he would monitor (T97, p.194).
On 8 August 2017, the Respondent wrote to Mr Keogh requesting a supplementary report in regards to the Applicant. The Respondent noted the accepted, compensable conditions as ‘lateral epicondylitis (R)’, ‘lateral epicondylitis (L)’, and ‘de Quervain’s Tenosynovitis (R)’; later referred to the A1 pulley surgery; then sought Mr Keogh’s opinion on the relationship between the ‘latter condition and the noted compensable conditions’.
The ‘latter condition’ in this context is clearly referring to the A1 pulley surgery.
The Respondent also sought Mr Keogh’s opinion on the likely mechanism of injury which resulted in the Applicant’s A1 pulley condition for which she underwent the A1 pulley surgery (T98, p.195).
Mr Keogh replied to the Respondent’s request for supplementary report in his report dated 10 August 2017 (T99, p.199). He stated:
Could you please provide the details of the relationship between the latter condition and the noted compensable conditions?
Stenosing tenosynovitis is a condition commonly associated with prolonged repetitive use of the digit much the same as de Quervain’s tenosynovitis. A1 pulley stenosing tenosynovitis is the same pathological entity. As to the direct relationship between the latter conditions and the A1 pulley release, there is no direct relation although it reflects an underlying more widespread phenomenon.
Could you please provide the likely mechanism of injury which resulted in Ms Smith’s right thumb condition for which she recently underwent surgery.
It is usually associated with as mentioned previously repetitive and prolonged use of the affected digit leading to hypertrophy of the pulley system.
The Tribunal notes that Mr Keogh described the mechanism of injury in the following terms: ‘It is usually associated with as mentioned previously repetitive and prolonged use of the affected digit leading to hypertrophy of the pulley system’ (T99, p.199).
On 22 August 2017, the Respondent wrote to the Applicant advising her of their intention to undertake a reconsideration of own motion. The letter advised that the Respondent had attempted to phone the Applicant but had not been successful so had left a message.
The Respondent advised the Applicant that if she wished to provide any additional evidence to the Respondent before the reconsideration of own motion was completed, it should be received by the Respondent before 5 September 2017 (T100, p.201).
The Respondent further advised the Applicant that she should contact the Respondent should she wish to discuss an extension of this period, and that if the Respondent did not receive the requested information before 5 September 2017 that a determination would be made based on the evidence of the Applicant’s claim (T100, p.201).
The Applicant provided in her oral evidence that she was overseas at the time this letter was sent and so was unable to provide a response within the requested time frame (Transcript, p.4). The Applicant was critical of the Respondent’s failure to send this letter to her by email, and stated she had been previously been sent other correspondence by email (Transcript, p.4). A review of other correspondence sent by the Respondent to the Applicant does not indicate she received her documents by email. In any case, the Tribunal accepts that the Applicant did not respond to the Respondent within the requested time frame of 5 September 2017.
On 13 September 2017 the Respondent issued a reconsideration of its own motion pursuant to s 62(1) of the SRC Act. (T101, p204). It stated:
For compensation to be payable for your claimed surgery, I must be satisfied that it was reasonable medical treatment, obtained in relation to your compensable conditions of ‘lateral epicondylitis(right) [sic]; lateral epicondylitis(left) [sic]; and dequervains [sic] tenosynovitis(right) [sic].
On the basis of Dr Keogh’s opinion that the requirement for your surgery was not in relation to these conditions, I find that you are not entitled to compensation for costs associated with the A1 pulley release surgery.
Decision
Therefore I have revoked the determination dated 13 July 2017 and find that compensation is not payable for right thumb A1 pulley release under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Mr Keogh provided a further report on 2 October 2017 in which he stated (T102, p.206):
I gather there has been some confusion about causality about her most recent surgery and the fact that her claim has been retrospectively disapproved.
This leaves her with somewhat of a financial burden naturally enough.
As I have explained before, the A1 pulley stenosing tenosynovitis is the same clinical entity as de Quervain’s tenosynovitis which has been covered under Comcare previously. I think it is reasonable for her to expect that this be covered as the same pathological entity has been covered previously under her Comcare insurance claim.
Mr Keogh did not provide oral evidence at the hearing.
The Respondent arranged for the Applicant to be reviewed by Dr Hanrahan, Consultant Physician, Rheumatologist. The referral letter is Exhibit R4 and Dr Hanrahan’s report is Exhibit R2. Dr Hanrahan gave oral evidence at the hearing, and was cross-examined by the Applicant.
Dr Hanrahan describes the history of the right thumb pain as follows (Exhibit R2, p.3):
In around October or November 2016, Ms Julieann Smith developed pain in the right thumb. Her arm had been stable for some years prior to this. The problem in the right thumb was new and it did not exist prior to October or November 2016. She did not do anything in particular to precipitate or exacerbate the pain.
She noticed it while using her Kindle with minimal discomfort in the right thumb over the flexor aspect and a “catching feeling”, with intermittent clicking but no overt locking, i.e. she did not have to manually release the thumb at any stage.
She had some physiotherapy which did not help and was referred to Mr Angus Keogh. He arranged an ultrasound and x-ray of the right thumb. These were done on the 3rd November 2016 and I was able to sight these. The hand and thumb
x-ray was normal and there was no evidence of any osteoarthritis. The ultrasound imaging clearly demonstrated thickening around the A1 pulley. On the
9th November 2016, she had a steroid injection which did not help and she eventually came to operative release of the A1 pulley, having apparently obtained approval from Comcare, on the 21st July 2017. The thumb is now “fine” with absolutely no symptoms at all.
The Tribunal notes that the history provided by Dr Hanrahan varies from that provided by Mr Keogh in his report dated 1 November 2016, where Mr Keogh describes a six to nine month history of symptoms. By comparison, Dr Hanrahan’s report refers to pain developing in October or November 2016. The Applicant stated in her oral evidence during cross-examination that she experienced the onset of symptoms earlier in 2016, but they had become more noticeable around the time she visited Mr Keogh (Transcript, p.15). Dr Hanrahan during cross-examination stated that the medical history provided in his report was as stated by the Applicant (Transcript, p.27). The Tribunal is inclined to place more weight on the report of the treating surgeon, here being Mr Keogh, and accepts that the symptoms began earlier in 2016.
The Applicant stated in her oral evidence at the hearing that she had been incarcerated for a period of time from October 2015 until July 2016 (Transcript, p.10-11). During that time the Applicant worked in the kitchen serving food to the staff during the week, working at point of sale on the weekends in the café, making coffee and preparing desserts for the chef. She did this work for seven days per week for approximately seven hours per day, with a one hour lunch break (Transcript, p.12).
The chronology provided by the Applicant herself indicates the onset of these symptoms occurred during the time she was incarcerated.
At page 4 of his report, Dr Hanrahan gives the following opinion:
The A1 pulley problem in the right thumb developed 1 to 2 months before the applicant recommenced work elsewhere and more than 3 years after she last worked for the Commonwealth. The symptoms she describes and the ultrasound are consistent with A1 pulley thickening and triggering of the thumb and this has responded appropriately to treatment. The condition has totally resolved. The area of involvement is remote from the ongoing wrist abnormality and is not related to this, or other accepted compensable conditions. I believe she has a predisposition to tendinopathy based on the history of enthesopathy and tendon problems involving both arms and the previous bilateral ganglion formation. Nevertheless, the A1 pulley problem is a separate and discrete problem that is not related to her previous employment or accepted disabilities. I note however that treatment was based on acceptance of payment for the procedure by Comcare in a letter dated the 13th July 2017. She had surgery performed soon after this approval was given, on the 21st July 2017. On the 13th September 2017, Comcare revoked the determination of the 13th July 2017.
At page 5 of his report, Dr Hanrahan refers to her current conditions:
The right rotator cuff pain has resolved, the left lateral epicondylitis has resolved, the right lateral epicondylitis exists in extremely minimal symptomatic state with a full range of motion and no pain on movement or gripping, etc. with only minimal tenderness over the lateral epicondyle and can be regarded as having largely resolved. She continues to have problems in the wrist related to the previous diagnosis of de Quervain’s tenosynovitis/flexor carpi radialis tenosynovitis/volar ganglion. Treatment of this has not been entirely successful and she continues to have pain arising from the wrist.
Further, at page 5 of his report, Dr Hanrahan gives a clear diagnosis of the A1 pulley condition:
The applicant did suffer from a triggering right thumb A1 pulley (the A1 condition). This is based on the presence of discomfort in the flexor aspect of the thumb, a sensation of “clicking” and “catching” sensation on movement of the thumb with some difficulty with extension and confirmed by a clearly thickened A1 pulley on ultrasound. There is no doubt about this diagnosis.
…
I do not believe that the A1 condition is the same condition as one of the applicant’s accepted conditions as I have stated previously.
…
I do not believe there is any connection between the A1 condition and the accepted tenosynovitis conditions, other than that the applicant does seem to have a predisposition to the development of tendon/ligament/ganglion conditions in her upper limbs based on her history. Apart for the predisposition however, this is a completely discrete condition.
At page 6 of his report, Dr Hanrahan considered whether stenosing tenosynovitis is the same pathological entity as de Quervain’s as a condition associated with prolonged repetitive use of the digit (R2, p.5-6):
I agree that stenosing tenosynovitis can be associated with repetitive use of the digit much the same as de Quervain’s tenosynovitis. Ultrasonography and management of A1 pulley problems is similar to that of de Quervain’s and they are usually regarded as a similar pathological entity, as Dr Keogh notes. Both are related to repetitive activity and the most likely etiological factor in the case of the applicant is the manipulation and handling of her Kindle, which is when she first noticed it. I agree with Dr Keogh’s statement but note that although the conditions are similar, they are discrete entities.
In relation to the surgery, Dr Hanrahan stated (R2, p.7):
The A1 procedure was obtained in relation to the A1 pulley issue which was separate from the lateral epicondylitis (right); lateral epicondylitis (left); de Quervain’s tenosynovitis (right) and ‘FCR tenosynovitis and ganglion’.
…
The A1 procedure was related to a probable underlying predisposition to tendon problems.
…
The A1 procedure was obtained in relation to the A1 condition, which as noted, is a separate condition. I note that the Commonwealth initially agreed to pay for surgical management of this condition and based on this surgical management followed.
Dr Hanrahan provided his opinion that it was appropriate for the Respondent to not accept the A1 pulley condition as work-related. Dr Hanrahan made the comments that this non-acceptance should be measured from the date of non-acceptance, and as such that medical costs should be covered from between the date of agreement to pay for the procedure until the date of non-acceptance (R2, p.8).
Dr Hanrahan explained in his oral evidence that the basis of his opinion was that the A1 pulley issues and de Quervain’s occur in different places of the wrist and thumb, and provided two diagrams demonstrating the mechanisms within the wrist and the thumb which would lead to either de Quervain’s disease or an A1 pulley condition in the hand (Exhibit R5). He explained how de Quervain’s occurred when the extensor tendons were involved, resulting in pain over the radial styloid of the wrist; whereas the A1 pulley condition involves the flexor tendon and results in pain below the crease where the digits join the palm (Transcript, p.24). In oral evidence, Dr Hanrahan stated (Transcript, p.25):
Mr Hawker: For the record, what I’ve handed up to Member and what the doctor is looking at is two pictures, one of a finger bent over and one of the hand and wrist. Are you able to talk to the pictures, just to give it a bit more of a sort of an easier way to point to - or to assist in the areas that you were describing earlier?
Dr Hanrahan: Well, the de Quervain’s one shows the outside of the thumb, you can see the thumbnail on the end. So that’s what’s called the extensor aspect of the thumb, and you can see that where the issue is - you can see the tendons here down there - is a long way from the digit. It’s actually over the bony part of the wrist here, what we call the radial styloid. If you run your finger along, you can see that it goes up to a little bump there.
Mr Hawker: So are you currently describing the location of the de Quervain’s tenosynovitis?
Dr Hanrahan: Yes, it’s here, over the radial styloid of the wrist. The forearm is made of two bones, the radius and the ulnar. That’s the end of the larger bone, the radius.
Mr Hawker: And the location of the A1 pulley, as distinct from that?
Dr Hanrahan: In the thumb, the A1 pulley would have as I said, just proximal to the crease here, so it is - and on the flexor aspect rather than the extensor aspect. The flexor aspect is here, so that’s where the A1 pulley of the thumb is, just there.
Mr Hawker: And in one of the pictures you’ve brought along, you’ve said it’s a finger as opposed to a thumb, but there’s references to A1, A2, A3 et cetera. Are you able to use that?
Dr Hanrahan: Yes, they’re all valid. That’s equally valid in the thumb, except that it ends a bit sooner. It doesn’t have the - the thumb doesn’t have that one here, so the thumb ends there if we remove that.
Mr Hawker: What we’re looking at in this particular case is the A1?
Dr Hanrahan: Is the A1, which is no different in the thumb from this picture. The A1 here, as I said, it’s near the joint. There’s the joint. De Quervain’s, although different, is over the extensor aspect. This is a flexor tendon going through the A1 pulley.
Mr Hawker: And so as a result of the various points that you’ve explained in the locations, you were able to conclude that they’re different entities?
Dr Hanrahan: Yes.
When asked by the Tribunal what Mr Keogh may have meant when he reported that the A1 pulley stenosing tenosynovitis was the same clinical entity as de Quervain’s tenosynovitis, Dr Hanrahan stated that both conditions related to sheaths and tendons. His opinion was unequivocal however in stating that the two conditions are entirely separate (Transcript, p.25).
The Tribunal notes that the Applicant has other accepted conditions; however there is no suggestion in any of the medical opinions provided to the Tribunal that the A1 pulley condition is connected to any of these other conditions.
CONCLUSIONS
Having carefully considered all the documents provided by both parties in this matter, together with the oral evidence of the Applicant and that of Dr Hanrahan, the Tribunal has concluded that the Applicant suffered from ‘flexor tenosynovitis with tendon sheath thickening, most marked in the region of the A1 pulley’, that is, the A1 pulley condition. She underwent the A1 pulley surgery for a ‘right thumb A1 pulley release’, which has been conceded as reasonable medical treatment. This is in accordance with the specialist opinion of Mr Keogh.
Unfortunately, based on the specialist opinion provided by Dr Hanrahan, together with the written reports of Mr Keogh, the Tribunal is unable to come to any conclusion other than the condition for which the Applicant is seeking medical expenses is not an ‘injury’ as defined by s 5A(1) of the SRC Act. Despite Mr Keogh stating the conditions are the same clinical entity, Dr Hanrahan’s evidence was unequivocal in demonstrating they are different medical conditions that involve the same structures within the body, namely tendons and sheaths of the wrist and thumb.
There is no medical evidence before the Tribunal to support the Applicant’s contention that the surgery was in relation to her accepted conditions or ‘injuries’ as defined in s 5A of the SRC Act.
As noted earlier, the Applicant has not made a claim pursuant to s 54 of the SRC Act for the acceptance of the A1 pulley condition as an ‘injury’ and the Tribunal has concluded it does not have the jurisdiction to consider this issue. In any case, the Tribunal notes the lack of medical evidence in that regard together with the break in the chain of causation given the different activities the Applicant engaged in following the cessation of her Commonwealth employment.
DECISION
For the reasons above, the Tribunal affirms the decision of the Respondent.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member M East
.................................[sgd].......................................
Associate
Dated: 20 May 2019
Date of hearing: 13 February 2019 Applicant: In person Counsel for the Respondent: Ms D Jones-Bolla Advocate for the Respondent: Mr M Hawker Solicitors for the Respondent: Sparke Helmore
0