Steven Richards and Telstra Corporation Limited

[2012] AATA 491

[2012] AATA 491 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	No 2011/1651
Re	Steven Richards
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Deputy President P E Hack SC
Date	30 July 2012
Place	Brisbane (heard in Townsville)

The decision under review is set aside and a decision made in substitution thereof that the respondent is liable to pay the applicant compensation, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), for the condition of right wrist tenosynovitis.

…………….[Sgd]……………………….
Deputy President P E Hack SC

CATCHWORDS

COMPENSATION – Injury – arose out of or in the course of employment – disease – contributed to, to a significant degree, by employment – regular use a keyboard and a computer mouse condition of right wrist – incapacity for work – decision set aside and decision substituted.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B

REASONS FOR DECISION

Deputy President P E Hack SC

30 July 2012

Introduction

1. The applicant in these proceedings, Mr Steven Richards, has been an employee of the respondent, Telstra Corporation Limited (and its predecessors), for very many years. Mr Richards complains of tenosynovitis to his right hand which he attributes to his employment, in particular, the need to use a keyboard and a computer mouse in performing his daily tasks.

2. Mr Richards made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Telstra (by its insurer) rejected the claim and affirmed that decision on reconsideration. Mr Richards now seeks a review of that decision.

   The legislative scheme

3. Given the matters in issue between the parties the legislative scheme need only be briefly noticed. By virtue of combination of ss 14 and 108A of the SRC Act, Telstra, as a licensee under that Act, is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. There is no doubt that Mr Richards is an employee as that term is used in the SRC Act and there is no doubt that Mr Richards' medical condition has resulted in, at least, incapacity for work. The issue is whether that condition answers the description of injury in the Act.

4. The term "injury" is defined in s 5A(1) of the SRC Act as meaning:

   (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.

5. In turn, "disease" is defined in s 5B(1) of the Act as meaning:

   (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.

6. A "significant degree" means a degree that is substantially more than material. The matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by employment are set out, non‑exhaustively, in s 5B(2) of the SRC Act in these terms:

   (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.

   But the subsection does not limit the matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by employment. .

   Background

7. Mr Richards commenced working for Telstra's predecessor as an apprentice technician some 38 years ago as a 16 year old. For the following 25 years he was employed in various technical positions. In December 1998 he commenced employment as a sales consultant in Telstra's Townsville call centre. In that role Mr Richards worked at a workstation with a telephone handset taking calls from customers. He recorded details of the calls and outcomes of calls using a computer.

8. In about 2002 or 2003 Mr Richards was promoted to the position of Team Leader. In that role he was responsible for looking after up to 18 sales consultants. The role, he says, involved a lot of sustained typing. It is common ground that Mr Richards, who is right‑handed, used his two index fingers to type. The systems and processes of Telstra's call centre changed constantly, according to Mr Richards. Over the years his tasks involved more "mouse clicking" with a lesser proportion of time devoted to pure keyboard work.

9. Mr Richards says that he first experienced problems with his right hand in late 2005 or early 2006. On a regular basis, at first approximately weekly and then more frequently, he would feel a sharp, stabbing pain to the back of his right hand, on the left side of the hand. This pain tended to occur when he was reaching for the mouse or to pick something up from the desk. He says that he found that the pain went away fairly quickly when he massaged the back of his hand.

10. In January 2007 Mr Richards reported the experience of this pain to an occupational therapist who was conducting a workplace assessment. I infer that that assessment was occasioned by Mr Richards' complaints of experiencing back pain. The report, dated 15 January 2007 and sent to Ms Fiona Hardy, the call centre manager, referred to the complaints of wrist pain in these terms,

    Mr Richards reported he also experienced right wrist pain. He reported wrist pain occurred when completing keying and mousing tasks. Mr Richards reported the pain often extended from his wrist, up to his right forearm. Mr Richards reported a perception that he may be experiencing symptoms of carpal tunnel, however he had not yet discussed these symptoms with this treating doctor. Mr Richards reported he had purchased a mouse wrist rest pad, that had assisted with relieving his wrist symptoms when mousing.

11. Despite the frequency of the occurrences of pain in this way Mr Richards made no further complaint and did not take the matter up with his doctor until September 2010, in circumstances dealt with below. Mr Richards said that from early 2010 or thereabouts the frequency of these bouts of pain increased until they were occurring at least twice a week. Towards the middle of the year the level of pain increased. Matters came to a head on 11 September 2010, a Saturday. Mr Richards says that over the course of that day his right hand swelled up and the level of pain increased. By the evening the pain had become unbearable such that he was unable to stay at a social function and returned home. Mr Richards went to work on the Monday with his hand in a bandage. He told Mrs Hardy, according to her, that "something had popped" in his hand.

12. Mr Richards attended his doctor, Dr Raymond Mullen, on Tuesday, 14 September 2010. He did not, apparently, suggest to Dr Mullen that the problems in his right hand were attributable to his employment, a matter on which Telstra placed some reliance in the course of cross-examination of Mr Richards. In any event Dr Mullen certified Mr Richards as unfit for work from 14 to 21 September 2010. On 22 September 2010, when he returned to work, Mr Richards was wearing a wrist brace and a finger splint. Mr Richards apparently reported to Ms Hardy that repetitive typing and data entry had caused his injury.

13. Mr Richards appears to have attended Dr Mullen next on 21 October 2010 having returned to work, after some weeks leave, on 18 October 2010. On this occasion Dr Mullen certified Mr Richards fit for restricted duties until 12 November 2010 and diagnosed him suffering from tenosynovitis of the right wrist. In reliance upon this certificate Mr Richards lodged his claim for compensation dated 21 October 2010. It identified the condition as tenosynovitis of the right wrist.

14. Dr Mullen referred Mr Richards to Ms Cassandra Webb, an occupational therapist who specialised in hand and upper limb rehabilitation. Ms Webb treated him in, at least, October and November 2010. Ms Webb expressed the opinion that Mr Richards was suffering from "tendonitis of the right index finger EDC tendon".

15. Telstra referred Mr Richards to Dr Richard Gibberd, an orthopaedic surgeon, for the purposes of an assessment. Dr Gibberd saw Mr Richards on 10 December 2010. He was of the opinion that the signs and symptoms evident in Mr Richards were not consistent with any organic pathology.

16. On the basis of Dr Gibberd's report Telstra made a determination on 29 December 2010 to reject Mr Richards' claim for tenosynovitis.

17. Mr Richards was referred for treatment to Dr James Price, an orthopaedic surgeon specialising in hand and lower limb surgery. Dr Price arranged for an MRI to be undertaken on 11 January 2011. That was reported as showing low grade extensor carpi radialis longus/brevis tenosynovitis. Dr Price subsequently expressed the opinion that the condition "probably is related to his use of a mouse." He arranged for a steroid injection. Following the hearing, and with the agreement of Telstra, Mr Richards forwarded a copy of the report of that procedure. It read,

    FINDINGS: Sonographic examination of the region of interest demonstrated a small amount of fluid within the second extensor compartment tendon sheath, this is associated with mild synovial hypertrophy.

    In addition, Mr Richards forwarded a medical report of Dr John Monro to the Tribunal on 19 July 2012. He did not have leave to do so nor does it appear that Telstra agreed to him doing so. I have paid no regard to that report.

18. Armed with the opinion of Dr Price, Mr Richards sought reconsideration of the determination. It was affirmed on 4 April 2011. These proceedings were commenced on 4 May 2011.

    The medical evidence

19. I had the benefit of evidence from a number of doctors – Dr Mullen and Dr Price (relied on by Mr Richards) and Dr Gibberd and Dr Ronald Hazelton, a consultant in rheumatology and rehabilitation (called by Telstra). In addition, Mr Richards relied upon the evidence of Ms Nancy Stephenson, an experienced occupational therapist.

20. Dr Mullen was Mr Richards’ general practitioner. He was of the opinion that Mr Richards had tenosynovitis and that it was "a repetitive strain type injury relating to his work"[1]. He reached that conclusion "based on the symptomatology, based on… clinical examination, and based on the type of work duties that Mr Richards performs"[2]. His diagnosis and opinion was confirmed by the views of Dr Price subsequently received[3].

    [1]           Exhibit 1, page 67.

    [2]           Transcript 7 December 2011, page 66, lines 1-5.

    [3]           Transcript 7 December 2011, page 69, lines 27-29.

21. Dr Price is a consultant orthopaedic surgeon and senior lecturer at James Cook University in hand and lower limb surgery. In a report dated 14 March 2011[4] he said,

    I think that it is a very reasonable assumption that his excessive working particularly on a mouse and keyboard where he has to keep his wrist extended has actually resulted in this tenosynovitis around the ECRB [extensor carpi radialis brevis] and ECRL [extensor carpi radialis longus].

    In an earlier report[5] Dr Price expressed the opinion that the tenosynovitis "probably is related to his use of a mouse as that is the exact action that these tendons have in extending the wrist".

    [4]           Exhibit 1, page 63.

    [5]           Exhibit 1, page 52.

22. Unfortunately, Dr Price was not willing to provide Mr Richards with a report for the purposes of these proceedings or to give evidence orally as he was Mr Richards’ treating doctor. I express no criticism of Dr Price in recording that; many treating doctors adopt a similar approach; but the result is that I am deprived of the benefit of any testing of the opinion of arguably the best qualified medical practitioner and of Dr Price’s views on the contrary opinions of Dr Gibberd and Dr Hazelton.

23. Dr Gibberd, who appears to be based in Sydney and who has little clinical practice at present, saw Mr Richards on 10 December 2010. He found no evidence of any underlying pathology and described the symptoms recounted by Mr Richards as "bizarre"[6] and not commensurate with the subsequent findings of the MRI[7]. There was, he said, nothing in his examination which was consistent with "a synovitis on extensor carpi radialis longus or brevis"[8]. The MRI findings, he considered, were "probably…just an imaging appearance, and not symptomatic"[9].

    [6]           Exhibit 1, page 39. 

    [7]           Transcript 7 December 2011, page 82, lines 27-31.

    [8]           Transcript 7 December 2011, page 82, lines 43-44.

    [9]           Transcript 7 December 2011, page 83, lines 4-5.

24. Dr Hazelton saw Mr Richards in July 2011. He concluded that it was likely to be Mr Richards’ recreational activities, in particular deep sea fishing, rather than his employment related keyboard/ mouse activities, that caused the tenosynovitis[10]. He considered that Mr Richards’ complaints were not consistent with the MRI results and that the observable features of Mr Richards’ hand did not correlate with the MRI findings, that is, he could find “no tenderness, swelling or crepitus of the tendons”[11].

    [10]         Exhibit 10, page 14.

    [11]         Transcript 8 December 2011, page 26, lines 24-25.

25. Ms Stevenson saw Mr Richards in March 2012. He was, even then, complaining of constant discomfort in his right wrist and limited capacity to use his right, dominant hand. Her conclusion that Mr Richards’ symptoms were attributable to his employment appears to have been informed by Mr Richards’ history, both of the symptoms and his employment, and by her experience in dealing with similar injuries in the past. She described “numerous causative factors" in Mr Richards’ work environment "which would appear to have contributed to the onset of his symptoms".[12]

    [12]         Exhibit 11, page 11.

26. I should, finally, mention the report of Dr Graeme Edwards[13], a specialist in occupational and environmental medicine, who assessed Mr Richards’ condition in March 2011. He described Mr Richards as having "active bilateral connective tissue problems involving his wrists and tendons". He made a tentative diagnosis involving the possibility of rheumatological disorders however since then Dr Hazelton, a specialist rheumatologist, has excluded the possibility of systematic inflammatory joint disease including rheumatoid arthritis[14].

    [13]         Exhibit 16.

    [14]         Exhibit 10, page 10.

    Consideration

27. I should say at the outset that I do not doubt that Mr Richards is genuinely convinced that the symptoms of which he complains are the result of his manner of work. Nor do I doubt that he has given his evidence truthfully. There may be a degree of exaggeration in Mr Richards’ evidence; certainly the complaints he makes seem not to match the observable signs.

28. Nonetheless I am satisfied that Mr Richards suffers from tenosynovitis. The evidence of the MRI in particular, and the views of Dr Mullen and Dr Price, leads me to that conclusion. I accept that Dr Price was not available for cross-examination however this is a case where I regard the treating practitioner as having a distinct advantage over that of the practitioner engaged solely for the purposes of providing a medico-legal report. Dr Price has had a far greater exposure to the signs and symptoms of Mr Richards’ condition than any other practitioner except perhaps for Dr Mullen. I acknowledge, as well, that Dr Gibberd has a contrary view but I must say that I was not particularly impressed by his evidence. His explanation of the MRI results as "probably just an imaging appearance" struck me as altogether too glib. The MRI demonstrates, objectively, the presence of a condition which Dr Gibberd was unable to detect on his clinical examination. That cast considerable doubt on the worth of Dr Gibberd's evidence.

29. Dr Hazelton seemed to accept that Mr Richards suffered from tenosynovitis although he considered that the observable features of Mr Richards hand did not correlate with the findings of the MRI. Nonetheless, I am satisfied that Mr Richards did have tenosynovitis of the right wrist.

30. Whilst I am not required to reach a conclusion about the severity of the symptoms I very much doubt that, objectively speaking, they are as severe as Mr Richards perceives them to be. The objective evidence would suggest that the tenosynovitis is quite minor. That however is not a question that I am called upon to determine in these proceedings. The more difficult question is whether, if the condition amounts to an injury properly so called, the tenosynovitis has arisen out of, or in the course of, his employment or, if it be a disease, whether it was contributed to, to a significant degree, by that employment.

31. The case for Telstra was that even if it be accepted that Mr Richards had tenosynovitis I could not be satisfied that it arose out of or in the course of his employment with Telstra. It did not suggest that if the cause of the condition was Mr Richards’ typing and mouse work it would be other than in the course of his employment. Rather the case was that those aspects of Mr Richards’ employment did not cause his tenosynovitis. To the extent to which Telstra advanced a positive case it was that any tenosynovitis was caused by Mr Richards’ recreational activities namely deep sea fishing. 

32. Much was made in Telstra’s case of the absence from the clinical notes of Dr Mullen of any complaint of wrist pain prior to 14 September 2010 and the absence of a suggestion by Mr Richards on that occasion that the pain he was then experienced was attributable to his employment. So much may be accepted but it remains the case that in January 2007 Mr Richards was then complaining of right wrist pain which was alleviated by him using a mouse wrist rest pad. There is then, at least to that extent, support for the case that Mr Richards advances.

33. Both Dr Mullen and Dr Price were of the view that Mr Richards’ symptoms arose as a consequence of his work on the computer. For the same reasons that I accept their opinion as to diagnosis I accept their opinions on the cause of the condition. It finds support in the opinion of Ms Stevenson which in turn is informed by her considerable experience with similar injuries. I am not persuaded by Dr Hazelton's evidence that Mr Richards’ tenosynovitis is caused by his recreational activities. Dr Hazelton may well be right that the activities of a commercial fisher may cause similar injuries. But the evidence of Mr Richards and Mr Neil Webster, his occasional companion on fishing trips, satisfy me that the activities that Mr Richards engaged in whilst deep sea fishing were not of the nature or of the intensity observed by Dr Hazelton among commercial fishers which, in Dr Hazelton's view, were likely to cause tenosynovitis.

    Conclusion

34. It follows that I would set aside the decision under review and substitute a decision that Telstra is liable to pay compensation to Mr Richards in accordance with the SRC Act for the condition of right wrist tenosynovitis.

35. Mr Richards has been unrepresented throughout these proceedings however he may have incurred costs in calling witnesses. Accordingly, unless submissions to the contrary are received from Telstra within 14 days of the date of publication of these reasons Telstra will be ordered to pay Mr Richards’ costs of and incidental to the proceedings to be taxed.

I certify that the preceding 35 (thirty –five) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.

.................[Sgd]......................................

Associate

Dated 30 July 2012

Date(s) of hearing	7 & 8 December 2011; 12 June 2012
Date final submissions received	28 June 2012
Applicant	In person
Counsel for the Respondent	Mr CJ Clark
Solicitors for the Respondent	Sparke Helmore