Tablizo and Australian Postal Corporation
[2007] AATA 1565
•20 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1565
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/691
GENERAL ADMINISTRATIVE DIVISION ) Re GLORIA TABLIZO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms R Hunt, Senior Member
Dr M E C Thorpe, MemberDate20 July 2007
PlaceSydney
Decision 1. The reviewable decision of 25 May 2006 is set aside and the matter remitted to the respondent with the direction that the applicant is entitled to compensation for the work-caused injury of carpal tunnel syndrome left wrist.
2. The Respondent is to pay the applicant's costs.
...................[Sgd]...................
Ms R Hunt
Presiding Member
Administrative Appeals Tribunal
DECISION (CORRIGENDUM) [2007] AATA 1565
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/691
GENERAL ADMINISTRATIVE DIVISION ) Re GLORIA TABLIZO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION (CORRIGENDUM)
Tribunal Ms R Hunt, Senior Member
Dr M E C Thorpe, MemberDate23 July 2007
PlaceSydney
Decision 3. The Tribunal published its Decision in this matter, which was dated 20 July 2007.
4. The Tribunal wishes to amend the Decision so as to rectify an error in the printing of the certification stamp of the decision. To do so with the least costs and inconvenience to the parties, the Tribunal exercises its power under s.43AA of the Administrative Appeals Tribunal Act 1975.
5. Now the Tribunal therefore orders that the certification stamp on the Decision of the Tribunal should read as follows:
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt and Member Dr Thorpe
Signed: Talaishia Collis
AssociateDate/s of Hearing 15 – 16 May 2007
Date of Decision 20 July 2007
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Mr H. Zreika –Slater & Gordon Lawyers
Counsel for the Respondent Mr G. Johnston
Solicitor for the Respondent Mr G. Jones –Graham Jones Lawyers
...................[Sgd]...................
Ms R Hunt
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – claim for carpal tunnel syndrome right wrist arising from the nature and conditions of employment – the respondent found to have liability to make compensation payments in respect of the applicant’s right wrist – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14
Treloar and Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Shaffaat Ali Sahu-Kahn [2007] FCA 15
Suters v Australian Postal Corporation (1992) 28 ALD 320
Comcare v Canute (2005) 148 FCR 232
Ngo and Australian Postal Corporation [2004] AATA 1033 (1 October 2004)REASONS FOR DECISION
20 July 2007 Ms R Hunt, Senior Member
Dr M E C Thorpe, Membersummary
6. Mrs Gloria Tablizo, the applicant, was working for Australia Post when she experienced symptoms of carpel tunnel syndrome. Mrs Tablizo claimed that the symptoms were the result of injury suffered at work but the workplace delegate who considered her claim rejected it. Her claim was reconsidered but the reviewable decision made on 25 May 2006 also denied liability for carpal tunnel syndrome. The decision maker found insufficient evidence to conclude the medical condition was a work injury. We have decided the reviewable decision of 25 May 2007 should be set aside and this matter remitted to the respondent with the direction that the applicant is entitled to compensation for the work-caused injury of carpal tunnel syndrome left wrist.
Issues
7. There is no doubt Mrs Tablizo suffered a left carpal tunnel syndrome as agreed by all specialists who have examined her and whose opinions are in evidence before us. Drs Teychenne, Sambrook and Honner also diagnosed right carpal tunnel syndrome. The question of a right carpal tunnel syndrome is not before us and we are only concerned with the left carpal tunnel.
8. The issue before us is whether Mrs Tablizo suffered an injury or disease, namely left carpal tunnel syndrome, as an employee of the respondent, which resulted in incapacity or impairment pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
9. Section 14 of the Act provides:
Compensation for injuries
(1) Subject to the 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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Evidence of Mrs Gloria Tablizo
10. The applicant’s evidence was that she commenced work with an Australia Post office in 2000. It was her first job in Australia and, as confirmed by her medical examination for the job placement, she had no arm or wrist problems at that time or previously (T4).
11. Mrs Tablizo’s evidence was that on 5 January 2006 when clearing C5 mail, which is big mail in big envelopes, from the stackers at work she felt an electric shock in the left hand. She said:
I was clearing the jaws – I have to take out the mail. When I was clearing the stackers I felt an electric shock in my left hand.
12. She could not, on further questioning, exactly recall what she was doing when she felt the electric shock. The electric shock involved all of the hand and, after the shock, the hand felt painful. She indicated, by pointing, that the shock she felt was in the fifth, fourth and third fingers, more on the medial aspect She also referred to numbness involving the third and fourth fingers and to tingling all over her hand. As well, she referred to stiffness which she had first noticed commenced in April 2005.
13. She also described the numbness as being first present in April 2005 but the tingling she first noticed on 5 January 2006. She gave further evidence confirming stiffness in April 2005 and said that by November, because of persistent numbness and stiffness, she saw her local practitioner, who referred her to a neurologist. On further questioning, she said she had pain in the left hand from April 2005. We do not have a neurological report from November 2005, but we have a report from Dr Teychenne, a neurologist, which is dated 19 January 2006. In this document, Dr Teychenne described his conclusions about Mrs Tablizo’s condition to Dr Lee, diagnosing bilateral carpal tunnel syndrome.
14. We were provided with the Occupational Health and Safety Guidelines for Australia Post, BCS Operations (Exhibit A3) with particular reference to page 6 of 18, Figures 4 and 5, to do with the output stacker and mail tray. In particular, Fig 4 makes special reference to employees only grasping what they can hold with the natural “C” of the fingers. These materials also contained diagrams and pictures that illustrated the various machines and equipment Mrs Tablizo referred to in her oral evidence.
15. Mrs Tablizo went onto light duties, after the 5 January 2006, working on the “MMF” sorting mail with a five kilogram lifting restriction and performing certain housekeeping duties. Between January and March, she said the tingling and numbness were getting worse. There were no more electric shocks. She underwent surgery to the left carpal tunnel on 28 March 2006. After surgery, she told us the numbness and tingling had gone away, but not the stiffness.
16. Mrs Tablizo’s evidence was that, in April 2005, she was working a five day week from Monday to Friday, commencing work at 11.00pm and finishing at 4.00am. She described her duties as follows:
We clearing the stackers, the stackers has four levels and it is a big machine, and we are feeding the mails from the feeding table, then we are despatching the trays, the full trays – they full trays, we are to dispatch them in the bull ring and sometimes –
17. For clarification she said:
Dispatching involves lifting a tray – one tray is eight kilograms, its minimum – and then if the mail is ready full, I have to dispatch them in the bull ring, load – and dispatch them.
18. She described the “bull ring” as a long line and then her counsel, Mr Richards, assisted us by saying it may be a conveyor belt that just takes the mail away to the bullring. Mrs Tablizo indicated her agreement. She gave further evidence that she had worked on the stackers for five years for an average time of four and a half hours a shift and, when not working on the stackers, she did housekeeping and sometimes helped on the MMF to clear trays and dispatch the trays.
19. Between April 2005 and January 2006, she described difficulty clearing the stackers because she could not hold the mail properly. After the electric shock in January, she could not grab the mail properly because her hand was weak. At home, she described problems such as breaking cups because her hand was weak and she said she had some difficulty folding clothes.
Medical Evidence
20. Several medical practitioners and specialists have examined Mrs Tablizo in regard to her carpel tunnel syndrome. Below, we have summarised the opinions of specialists who saw Mrs Tablizo for treatment and diagnosis. The specialists who gave evidence at the hearing of this matter also made reference to several research articles and epidemiological reference material which we have summarised and attached as an appendix to these reasons for decision. Dr Sambrook was inclined to the view that Mrs Tablizo’s condition was linked to her workplace activities while Dr Honner and Dr McGill thought her syndrome was entirely constitutional. Further debate between the medical experts centred on the role of activities involving a combination of force and repetition as opposed to one or other of these influences alone and also the effect of cold.
Dr Honner
21. Dr Honner, hand surgeon, in his report dated 1 November 2006 (Exhibit R1), reported Mrs Tablizo’s experiencing numbness in the left ring finger in April 2005 and later pain and sometimes tingling and numbness in the left hand, which was more severe at night. Dr Honner subsequently diagnosed this as carpal tunnel syndrome, writing:
She states that she works on a regular shift, five days per week, working five hours each day, totalling 25 hours per week. She stated that initially she was loading and unloading trucks, lifting trays of mail sometimes 8kg in weight and sometimes 16kg in weight. After that she was on the Bar Code Sorting Machine…
22. His opinion was that her carpal tunnel syndromes were due to constitutional and genetically pre-determined factors, and that it was very likely that she would have developed a carpal tunnel syndrome at this time of her life, whether she was working at Australia Post or not.
23. Dr Honner’s history of the incident in January 2006 was that Mrs Tablizo developed pain around the medial aspect of the left elbow and it seemed to Dr Honner that because of the involvement of the elbow and the electric shock going into the fifth, fourth and ring fingers, it may have been some temporary injury or irritation of the ulnar nerve at the elbow. He reported if there was an incident in January 2006, it appeared to have resolved soon after.
Professor Sambrook
24. Professor Sambrook, in his report dated 8 August 2006, obtained a history of onset of symptoms in the left hand in April 2005. He also obtained a history of Mrs Tablizo having seen several practitioners between April and November 2005 to seek treatment which was not provided although she was told she had a carpal tunnel. Professor Sambrook noted that a splint was provided in October which did not help, prompting referral to a neurologist in November. She first reported her problems to Australia Post the day after the electric shock feelings on 5 January 2006.
25. Professor Sambrook noted a body of literature in regard to the association of doing repetitive work, especially repetitive manual activity, and carpal tunnel syndrome. He noted that a meta-analysis of published studies of work related carpal tunnel syndrome have identified force and repetition as significant risk factors for carpal tunnel syndrome in the work related setting. On that basis he considered the repetitive manual work has been linked to carpal tunnel syndrome regardless of any pre-existing pre-disposition of a constitutional nature and so there is a probable relationship in her case.
Dr McGill
26. Dr McGill, in his report dated 24 January 2007, obtained a similar history to the other specialists of the onset of symptoms in March 2005 and no real change in her work duties between 2001 when she started work at the BCS and when she first developed hand symptoms. In Dr McGill’s opinion, Mrs Tablizo’s condition is entirely constitutional. Dr McGill reported:
I think it is probable her carpal tunnel syndrome was entirely constitutional. Although forceful repetitive work in cold conditions and work involving substantial vibration are associated with the development of carpal tunnel syndrome, the nature of her work duties and the fact that she noted no improvement in her symptoms when her work duties were restricted, lead me to the conclusion that it is very likely that she would have developed carpal tunnel syndrome at the same time regardless of her work duties.
Epidemiology
27. As there is agreement among the specialists that Mrs Tablizo suffers from carpel tunnel syndrome, our task is to examine the possible causation and any connection with Mrs Tablizo’s workplace. We are in agreement with Professor Sambrook that, in regard to the relationship between work and carpal tunnel syndrome, the opinion of hand surgeons or rheumatologists is less important than what the scientific literature tells us about the relationship between carpal tunnel syndrome (CTS) and work related factors. We are nevertheless reliant on these specialists’ interpretation of the literature which requires knowledge both of the research methodology, their clinical experience and the situation of Mrs Tablizo.
16. Professor Sambrook considers that meta-analysis of published papers is the best way to summarise the literature on a given subject by combining data from a large number of studies. He referred to the meta-analysis article on “Published Studies of Work Related Carpal Tunnel Syndrome” by Moustafa and others, as an attempt to summarise the literature on this subject. Professor Sambrook was in agreement with the meta-analysis conclusion that force and repetition were significant factors from the literature in the genesis of carpal tunnel syndrome. Mr Johnson, counsel for the respondent, continually challenged Professor Sambrook concerning his interpretation of force and repetition and our understanding of Professor Sambrook’s evidence was that the phrase meant force or repetition as well as force and repetition.
28. Dr McGill gave evidence that he thought the approach taken by the authors was reasonable and appropriate with an acknowledgement of the limitation of the data. Earlier Dr McGill acknowledged that forceful repetitive work in cold conditions and work involving vibration are associated with the development of carpal tunnel syndrome. He referred to the paper by Nordstrom and others, “Risk factors for carpal tunnel syndrome in a general population”, which identified five risk factors:
·use of power tools or machinery
·bending or twisting of the hands or wrists
·cumulative hours in the primary job (number of hours per day)
·employer’s attention to occupational health and safety
·degree of job control
29. Mrs Tablizo’s statement that she had not suffered tingling before 5 January 2006 is contrary to what she told Dr McGill according to his record taken at examination by him on 24 January 2007. Dr McGill recorded that she told him that she thought she first suffered tingling in about November 2005 (exhibit R3, page 2.3). Dr McGill was not swayed in his opinion by the Nordstrom paper and relied on the fact that there was no improvement in Mrs Tablizo’s symptoms when her work duties were restricted. When this opinion was put to Professor Sambrook, the professor repeated that one of the factors was the number of hours worked per day involving bending or twisting of the hands. As in his report, he noted an exposure of 3.5 – 6 hours and 7-16 hours were associated with a 2.33 fold and 2.47 fold increase respectively in the risk of carpal tunnel syndrome.
30. Dr Honner quoted a number of papers as supporting his counter view. His clinical view, supported by his experience of over 30 years as a hand surgeon, was that carpal tunnel syndrome is seldom due to work, and is almost invariably due to underlying constitutional conditions. He dismissed the findings of the meta-analysis as he regarded the case definition as too loose whilst acknowledging he did not understand the statistical methodology. He considered the authors’ case definition for a work related carpal tunnel syndrome was far too loose and would include many people with symptoms not due to carpal tunnel syndrome. Quoting the paper by Falkiner and Myers, “When exactly can Carpal Tunnel Syndrome be considered Work Related?”, he acknowledged, in his report of 1 March 2006, that occasionally in people who work in very cold temperatures, with significant loading and repetition, the work can be a contributing factor to the development of carpal tunnel syndrome.
31. Professor Sambrook considered the Falkiner and Myers paper indicated a prior bias on the part of the authors as they decided to discuss the “limitations of papers cited most frequently as demonstrating that work causes CTS” with no attempt to discuss the limitations of the papers that show no such relationship. In spite of this, they concluded that work in very cold temperatures, possibly in conjunction with force and repetition, may be associated with CTS.
32. Dr Honner referred to the paper by Dias et al “Carpal Tunnel Syndrome and Work” which reported:
This study suggests that working in repetitive or non-repetitive occupations does not cause or aggravate or accelerate carpal tunnel syndrome.
33. This study examined 327 women referred to a hand unit with carpal tunnel syndrome. As pointed out by Professor Sambrook they were not in any way a random sample of the population and in no way represented incident cases on a population level. Hence this lead to extremely doubtful conclusions. These deficiencies meant the study was fundamentally flawed from an epidemiological point of view.
34. Dr Honner also referred to the Hadler et al paper, “Repetitive Upper-Extremity Motions in the Work place are not hazardous”, which Dr Honner interpreted as showing “there is good evidence that the carpal tunnel syndrome is not due to work”. Professor Sambrook corrected this statement or conclusion as it was not made in the paper. Professor Sambrook instead referred to page 26 of the article where the authors point out that incident cases of CTS are such an infrequent event that it represents a daunting challenge to design research to properly test the hypothesis. Dr Hadler notes in the above article that even if a workplace hazard caused a tenfold increase in CTS that would only result in 7 new cases in a sample of 2000 workers.
35. When questioned at the hearing, Dr Honner approved the Mayo Clinic finding that, although it is not clear which activities can cause carpal tunnel syndrome, if work, or hobbies are hand intensive involving a combination, stressing the word “combination” of awkward, repetitive wrist, or finger motions, forceful pinching or gripping and working with vibrating tools, the person may be at high risk of developing the condition. He added that there was some evidence for that association, but it was a combination of all of them, rapid, high speed repetition with large force and often with vibrating tools. These were factors associated in combination as a possible work related factor in the onset of carpal tunnel syndrome.
36. Professor Sambrook agreed with the Mayo clinic findings and set out in his report, dated 7 May 2007, information from the current website of the Mayo Clinic, including these statements:
Repetitive flexing and extending of the tendons in the hands and wrists, particularly when done forcefully and for prolonged periods without rest, can increase pressure in the carpal tunnel
And
Although its not clear which activities can cause carpal tunnel syndrome, if your work or hobbies are hand intensive – involving a combination of awkward repetitive wrist or finger motions, forceful pinching or gripping, and working with vibrating tools, you may be at a higher risk of developing the condition.
37. Professor Sambrook’s opinion differed from Dr Honner’s in that he placed less emphasis on the combination of factors enumerated. Professor Sambrook accepted that force or repetition could contribute to the condition. He emphasised when giving his evidence that he thought the medical evidence based on the meta-analysis (meta-analysis article on “Published Studies of Work Related Carpal Tunnel Syndrome”) was that force or repetition can cause or aggravate carpal tunnel syndrome.
Consideration and Findings
38. There is no debate that Mrs Tablizo suffered carpal tunnel syndrome of the left wrist. She also has a carpal tunnel syndrome of the right wrist, but this is not for our consideration. The respondent concedes the clinical onset of the left wrist condition was April 2005. Mrs Tablizo continued to work but, on two or three occasions, sought medical advice from general practitioners between April and October 2005 for her wrist condition. No particular treatment was offered until October 2005 when, with worsening symptoms, she again sought medical advice and was provided with a wrist splint, which was of no benefit. She was referred to a neurologist in November 2005 but we do not have a neurologist report until 19 January 2006, which refers to an incident on the 5 January 2006.
39. Concerning the incident on 5 January 2006, when Mrs Tablizo developed pain around the medial aspect of her left elbow, Dr Teychenne provided no explanation. Dr Honner considered it may have been a temporary irritation or aggravation of the ulnar nerve at the elbow but, if there had been an incident, it had now completely resolved with no evidence of residual nerve problems or epicondylitis. Further, his opinion was that the carpal tunnel was not due to the incident occurring on 5 January 2006. Professor Sambrook considered the incident was the result of a cumulative process that was most likely related to the repetitive nature of the bending and twisting activities. Dr McGill was not in agreement that the cumulative effect of working on the stackers for four years contributed to the CTS. Also Dr McGill considered the pattern of symptoms describing the January incident could not be explained on the basis of carpal tunnel.
40. We accept that the clinical onset of the CTS was in April 2005, which is more than four years after Mrs Tablizo commenced her work duties on the stackers and was continuing these activities. There was considerable discussion concerning the symptoms prior and subsequent to the to January incident. As certain as we can be, accepting the bulk of the material before us as correct, Mrs Tablizo had numbness, stiffness and pain prior to the January incident and subsequently in addition, tingling. The change to light duties after 5 January resulted in no improvement in her symptoms, but she has had a good result from the decompression of the carpal tunnel, surgically performed in March 2006.
41. Dr Honner was of the opinion Mrs Tablizo’s CTS was due to constitutional factors and he did not consider it was due to her work with Australia Post and that it was very likely she would have developed a CTS at that time of her life whatever she was doing, whether working or not. Under cross examination by Mr Richards, Dr Honner agreed that he had not engaged in epidemiological studies involving meta-analysis and that he was not an expert in statistics. His was clinical expertise in diagnosing carpal tunnel syndrome and in knowing when to operate.
42. Dr McGill initially said Mrs Tablizo’s CTS was constitutional and that he did not think the literature supported an association between the type of activities that she was doing and carpal tunnel syndrome, particularly noting that, when she changed her activities in January 2006, it made no difference to her symptoms. Under cross examination he conceded that CTS was not always constitutional as it can occur with excessive weight gain, with repetitive activities such as those involved in the meat industry where people are doing forceful or repetitive work. His evidence was that forceful and repetitive activities, particularly in cold temperatures, increase the likelihood of the person experiencing CTS symptoms and he considered this was an opinion held in agreement with Professor Sambrook. Dr McGill considered this consequence arose in the setting of forceful work and not in the setting of non forceful work.
43. A difference of opinion arose between Dr McGill and Professor Sambrook concerning the interpretation of the meaning of force and repetition. Professor Sambrook’s interpretation of the meta analysis study evidence was that force alone or repetition alone or combined was sufficient for CTS whereas Dr McGill’s interpretation was that both force and repetition were required concurrently and that the force needed, was forceful work and not force in the setting of non-forceful work.
Conclusion
44. The questions for us to determine, as we have already found that our decision should be based on epidemiological studies rather than individual opinions as to the cause of Mrs Tablizo’s condition, are:
a.Did Mrs Tablizo incur a need for force and repetition or force alone or repetition alone in the course of her work. In these instances, was the force and/or repetition used sufficient to cause or aggravate a carpal tunnel syndrome in someone who may have been constitutionally predisposed?
b.Was the incident 5 January 2006 pertinent or was CTS present as of April 2005 because of the nature and conditions of her work?
45. As to the first question, Mrs Tablizo’s evidence is that her duties required her to perform repetitive activities throughout her shift. Her description also included other elements of causative activities such as having to make a pincer motion of the hand in order to hold the letters she was removing from the stacker. The occupational health and safety guidelines furnished also indicated that the movement involved a “C” shape formation of the hand.
46. Overall, we prefer the evidence of Professor Sambrook that the meta-analysis is the most reliable of the various epidemiological studies before us as it is based on a wider spectrum of persons included in a random selection. The meta-analysis resulted in the conclusion that either repetition or force played a role as well as a combination of these and other factors which might result in CTS. Dr Honner, although his report concluded that Mrs Tablizo’s condition was simply constitutional, he did acknowledge, in his report of 1 March 2006, that occasionally, in people who work in very cold temperatures, with significant loading and repetition, the work can be a contributing factor to the development of carpal tunnel syndrome. Under questioning, he also conceded that Professor Sambrook had greater expertise in the research field.
47. All the medical opinion suggests that Mrs Tablizo had a constitutional predisposition to CTS although they disagreed about the actual cause of the development of her left hand syndrome. On balance, from all the material before us, we conclude that, in someone with a pre-disposition to carpal tunnel syndrome, repetitive activity can result in aggravation of the symptoms of CTS. The epidemiological study preferred by Professor Sambrook gives strong support to the accuracy of this proposition and to our conclusion in Mrs Tablizo’s case.
48. Recently, the Federal Court has discussed the degree of contribution to an injury or disease that is a prerequisite for compensation. In Comcare v Shaffaat Ali Sahu-Khan [2007] FCA 15, Justice Finn referred to a series of previous matters including Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, Suters v Australian PostalCorporation (1992) 28 ALD 320 at 331 and Comcare v Canute (2005) 148 FCR 232. Justice Finn noted that the provisions in the former Compensation (Commonwealth Government Employees) Act 1971, in section 29, provided an entitlement to compensation where “any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation” [emphasis added].
49. This provision was considered in Treloar and was held to mean that while a causal connection must be established on the probabilities, once that link was established, “it matters not whether the contribution was of any particular size or degree” (at 323) [emphasis added]. The Federal Court later considered the application of Treloar in Suters v Australian PostalCorporation (1992) 28 ALD 320, when at 331, Ryan J commented:
… Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word “material” did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it …
50. Justice Finn in Comcare v Sahu-Khan at [12], gave qualified support to the ratio in Suters and commented further on the change wrought by the introduction of a requirement that the employee show that their employment contributed ‘in a material degree’ to the contraction of the disease involved in the particular claim for compensation. Compensation is now determined under section 14 of the Safety Rehabilitation Act 1988, which provides that compensation may be payable in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.. Section 4(1) of the Safety Rehabilitation Act 1988 now provides that that "injury" has the meaning given by section 5A. Section 5A provides, in part:
injury" means:
(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; …
51. The definition of “disease” is contained in section 5B, as provided under section 4(1) and reads, in part:
Definition of disease
(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 …
52. After referring to the recent decision of the Full Federal Court in Comcare v Canute (2005) 148 FCR 232, where the majority of the Full Court (French and Stone JJ) considered both the utility of Treloar’s case in construing the current definition of “disease”, Justice Finn observed that “(W)hat is problematic is identifying where that threshold lies”. After referring to the reasoning of the Full Court in Canute where it explained (at 323):
The use of the word ‘material’ in conjunction with the words ‘contributing factor’ in the [1971 Act], where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
Justice Finn added:
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.
53. In accordance with Justice Finn’s judgment we have considered all the evidence before us and are satisfied, on balance, that Mrs Tablizo’s ailment “was contributed to, to a significant degree, by her [the employee's] employment”. In our view, there is strong evidence of a causal relationship between the applicant’s employment and her ailment. We have already indicated that rather than come to a conclusion based on opinions of doctors who have examined the applicant and who agree that she has CTS, we prefer to place some reliance on the meta-analysis favoured by Professor Sambrook which examines causation over a wide random sample. The conclusions by doctors who examined the applicant as to causation are supposition based as clinical examination reveals only the end result of CTS and not the causation. The meta-analysis is, as Professor Sambrook explained, the most informed evidence before us of the effect of repetitive activity on a person with a predisposition to CTS. The study’s conclusion is that, in someone who has a pre-disposition to carpal tunnel, repetitive activity can result in aggravation of the symptoms of CTS. Professor Sambrook accepted the meta-analysis’ conclusion that force or repetition were significant factors in causation of CTS.
54. In reaching this conclusion, we have endeavoured to evaluate all the relevant contributing factors and have found evidence of no other cause of the applicant’s ailment although bearing in mind her constitutional predisposition. We have taken into account the applicant’s evidence, which was given in an honest an open manner and whose history was not challenged by doctors who examined her. We note one discrepancy in the time of onset about which Mrs Tablizo at one point said was 2006 rather than 2005. This was clearly an error as she reported the elbow incident in 2005. We also considered the medical evidence and all the epidemiological reference material before us in reaching our conclusion.
55. Bearing all these materials in mind, we are satisfied that the repetition used in operating the respondent’s stackers was sufficient to cause or aggravate a carpal tunnel syndrome in someone who was constitutionally predisposed and that this link between the work activity and the ailment is a strong one. Mrs Tablizo, having engaged in this activity continuously at work over a number of years, did suffer at the very least an aggravation to her pre-existing constitutional weakness, thus bringing on carpel tunnel syndrome.
56. We further find, on balance, that the most obvious demonstration of the development of the syndrome occurred with the incident on 5 January 2006, when she experienced symptoms of CTS, which was already present as of April 2005 because of the nature and conditions of her work.
57. As was pointed out to us at the hearing, the tribunal attributed the development of CTS to a similar workplace environment in Ngo and Australian Postal Corporation [2004] AATA 1033, where the tribunal said “the relevant aspects of the employment add their measure to the creation of the condition”. The tribunal in Ngo was relying on the judgment of the Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, when making this observation but, after applying the tests recommended by Justice Finn in view of legislative changes, we have reached a similar conclusion. We have reached the following conclusions:
a) Professor Sambrook implicates work at the mail centre as a significant contributing cause to the applicant’s permanent carpal tunnel syndrome, which has since been relieved by surgery.
b) The reviewable decision before us is, therefore set aside, and the matter is remitted to the respondent with the direction that the applicant is entitled to compensation in respect of her carpal tunnel syndrome left wrist.
c) We make the usual order directing the respondent pay the applicant’s costs.
Decision
58. The reviewable decision of 25 May 2007 is set aside and this matter remitted to the respondent with the direction that the applicant is entitled to compensation for the work-caused injury of carpal tunnel syndrome left wrist.
59. The Respondent is to pay the applicant's costs.
Appendix - Epidemiological Reference Material
60. Falkiner & Myers, “When exactly can carpal Tunnel be considered work related?” ANZ Journal of Surgery (2002): 72; 204.
61. This is a literature review of 64 articles including those articles most frequently cited as demonstrating the relationship between carpal tunnel syndrome (CTS) and work. They list the primary risk factors for CTS including women of menopausal age, obesity, lack of fitness, diabetes or a family history of diabetes, osteoarthritis of carpo metacarpal joint of the thumb, smoking and life time alcohol intake. In most cases their finding was that work acts as a “last straw” in the CTS causation and their conclusion was that in except in the case of work involving very cold temperatures (possibly in conjunction with load and repetition) e.g. butchery, work is less likely than dermatographic and disease related variables to cause CTS. They considered the quality of research in this area to be generally poor and made the observation that there is no standard diagnostic test for CTS.
62. There was no real disagreement with the observation that the quality of research in this area is generally poor. Dr Honner, Hand Surgeon also agreed that there is a no diagnostic test for CTS, emphasising it to be a clinical diagnosis. Professor Sambrook considered a bias was inherent in the Falkiner Myers paper where the authors looked for papers supporting the lack of association with work. It was a personal opinion piece with just reporting of individual papers. This opinion was shared by Dr McGill who considered that opinion evidence was biased and could be incorrect. Dr Honner considered that Falkiner and Myers to be well researched and agreed that work in very cold temperatures, with significant loading and repetition, can be a contributing factor to the development of CTS. Professor Sambrook opined that the additional cold requirement for cold temperature was not supported in the meta-analysis study.
63. Dias et al, “Carpal Tunnel Syndrome and Work”, The J. of Hand Surgery 2004: 29B(4):329-333
64. This was a study in 327 consecutive women of working age presenting to a hand unit with CTS. 217 were working of which 55 were in repetitive jobs and 110 were not working. On a population basis more women in non repetitive occupations presented with CTS than those in repetitive jobs or those not working. Symptoms and disability as assessed with the Michigan hand Questionnaire and the SF-12, were less severe in working women. This study suggested that working on repetitive or non repetitive occupations did not cause, aggravate or accelerate CTS. The authors also opined that in a population prone to carpal tunnel symptoms due to constitutional factors such as hormonal disturbance, weight and wrist and carpal tunnel size were subjected to the pressures of either repetitive or non repetitive work, earlier onset of symptoms would be anticipated if work influenced the disease process.
65. Professor Sambrook said this study was epidemiologically flawed as it was not a representative group as it was from a highly selective group referred to a hand unit and not representative of the population.
66. Hadler M.H., Clinical Perspective, Repetitive Upper-Extremity Motions in the Work Place are not hazardous. J of Hand Surgery.
67. This article traces the “cumulative trauma disorders”, a construct that ascribes the damage to usage – and not to just any usage, but to repetitive usage in industry in particular (“ctd” construct was offered as a consensus statement from an expert panel convened by the National Institute of Occupational safety and Health”). Hadler claims the ctd has been tested and that it is not tenable (not inclusive of extreme usage – neither paralysis nor violent events)
68. Professor Sambrook commented that Dr Hadler’s thoughtful subsection on CTS on p 21-21 point out the incident cases of CTS are such an infrequent event that it represents a daunting challenge to research design to properly test the hypothesis. With an incidence of 0.35 cases (1000 women/y), similar to the incidence derived from community based cohort analysis, would mean that if there was a workplace hazard that caused a 10 fold increase in the incidence of CTS in a work force of 2000, one would expect 7 new cases during the course of a year – a daunting challenge to research design. Professor Sambrook thought that what Dr Hadler said about carpal tunnel is that most papers have been flawed from a power issue rather that discounting a relationship and that was reasonable and that was why it was a thoughtful paper
69. Dr Honner wrote “Hadler reported in the Journal of hand Surgery that there is good evidence that the CTS is not due work and the “regional arm syndrome” is much more likely to be due to psychosocial challenges in the work place than ergonomic exposure
70. Nordstrom et al. - “Risk Factors from carpal tunnel syndrome in a general population”. Occupational and Environmental Medicine (1997); 54:734-740.
71. This is a population based control study which concluded that based on the statistical and biological evidence the factors that seem to have a causal relation to CTS were BMI, use of power tools or machinery and repetitive hand bending. Key board use was not a risk factor in this general population study. The authors referred to previous case-control studies that found an association between repetitive hand motion and CTS (page 738) measured hand bending as a dichotomous variable. This study’s results indicated that either hand motion alone was not a sufficient cause of CTS or the induction period of the disease exceeds 12 months. In agreement with a paper by Silverstein et al Am J Ind Med 1987;11:343-58 the authors found high repetition to be a greater risk factor for CTS than force.
72. Dr McGill’s analysis referred to the Nordstrom paper which identified five work related factors in the final logistic regression model which were associated with the risk of CTS.
(i) perception of the employer’s attention to occupational health and safety
(ii) cumulative hours in the primary job
(iii) use of power tools or machinery
(iv) bending or twisting of the hand or wrist
(v) degree of job control
73. Professor Sambrook identified the number of hours per day involving bending and twisting of the hands, and exposure of 3.5 – 6 hours and 7-16 hours were associated with a 2.33 and 2.47 increase in the risk of CTS (Table 2).
74. Moustafa et al. [furnished after the hearing on 5 June 2007], Meta-Analysis of Published Studies of Work – Related Carpal Tunnel Syndrome. Int J. Occup. Environ Health (1998):160-167
75. This study grouped risk factors for work related CTS into six broad categories: work years, age, work task repetition, energy force needed, precision grip required and other factors. Force and repetition were significant risk factors for CTS in their univariate analysis and in the regression model, appearing to confirm the roles of these risk factors in the development of work related CTS. Other risk factors could not be evaluated due to their infrequent use among published studies.
76. Dr McGill whilst considering the approach taken by the authors as reasonable and appropriate he considered the limitations discussed by the authors as reasonable, in particular as stated in their first sentence of the article, the authors set out to examine “published information about work related carpal tunnel syndrome.” Thus the studies were performed by authors who either prior to the study presumed that the carpal tunnel syndrome in the population was work related, or subsequent to the study reached that conclusion.
77. Despite the substantial limitations that the authors, in Dr McGill’s view, discussed appropriately, they noted that the meta-analysis supported the conclusion that “workers in the food industry and in grocery stores had lower risk estimates than did workers in the sheet metal, truck loading, auto assembly, cast metal, semiconductor and electronic industries. Workers in the latter industries are commonly exposed to high force and repetitive actions of the hands and wrists.”
78. Professor Sambrook regarded meta-analysis of published papers as the best way to summarise the literature on a given subject by combining data from a large number of studies and are usually applied to examine the effects of treatment on a given condition. Professor Sambrook supported Dr McGill’s view that the author’s approach was reasonable and appropriate with an acknowledgement of the limitations of the data. He accepted the meta-analysis’ conclusion that force or repetition were significant factors from the literature also.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt and Member Dr Thorpe
Signed: Talaishia Collis
AssociateDate/s of Hearing 15 – 16 May 2007
Date of Decision 20 July 2007
Counsel for the Applicant Mr G. Johnston
Solicitor for the Applicant Mr G. Jones – Graham Jones Lawyers
Counsel for the Respondent Mr D. Richards
Solicitor for the Respondent Mr H. Zreika – Sparke Helmore Lawyers
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