Thach and Telstra Corporation Limited
[2009] AATA 703
•11 September 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0200
GENERAL ADMINISTRATIVE DIVISION ) Re MONLENG THACH Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date11 September 2009
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the decision under review.
....................[Sgd].......................
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS COMPENSATION – Whether Applicant’s injuries arose out of, or in the course of employment with the Respondent – whether Applicant’s conditions were materially contributed to by employment with the Respondent – whether the Respondent is liable to pay compensation in respect of the injuries – the decision under review is set aside.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 14, 16, and 19.
REASONS FOR DECISION
11 September 2009 Ms N Isenberg, Senior Member Introduction
1. Ms Thach, now aged 46, has been employed by Telstra Corporation Limited (‘Telstra') as a Customer Service Officer. She has complained of "Bilateral epicondylitis" and reported "Injury/pain on both elbows” which she first noticed in March 2006.
History of Application
2. On 5 October 2006, a determination was made whereby as from 15 March 2006 there was no liability to pay compensation in respect of the injury. The delegate, in issuing that determination, had regard to the report of Dr Lloyd Hughes dated 29 September 2006. Ms Thach sought a review of that decision on 20 October 2006. On 6 December 2006 the Reconsiderations Delegate of the Respondent affirmed the determination of the delegate. Ms Thach has sought a review of that decision by this Tribunal.
3. On 17 August 2006, Ms Thach completed a claim for Workers' Compensation in respect of "Bilateral epicondylitis". Ms Thach reported:
Injury/pain on both elbows first noticed in March 06. It has worsened in the last couple of weeks. Now constantly feel pain at lower back of the head, back of the neck, shoulders and down to the right arm, and on both elbows.
Issues For Determination
4. I have had to decide whether:
a.Ms Thach’s condition of "bilateral epicondylitis and pain in neck, shoulders and arms" was sustained in the course of her employment with Telstra;
Alternatively, whether:
b.Ms Thach’s condition was significantly contributed to by her employment with Telstra;
And whether:
c.Telstra is liable to pay compensation to Ms Thach pursuant to sections 14, 16 and 19 of the Safety Rehabilitation and Compensation Act 1988.
Legislative Framework
5. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (“the Act”), in particular sections 4, 14, 16 and 19. These provisions are set out in the first schedule to this decision.
Applicant’s evidence
6. Ms Thach’s evidence was that she joined Telstra in September 1988 as a customer service officer. At first she was largely fielding phone calls from customers. In 1995, when she moved to Sydney from Melbourne, her role as a customer service consultant concerned with mobile telecommunication services changed to be more electronically based. She became a team leader and mostly had to distribute work to other team members. At that time the computer accounted for about 50% of her work.
7. She had to check the quality of the work of the ten team members and undertake troubleshooting. From about 2000 she was doing 60% computer work, 20% manual handling, and 20% phone calls. Between 2000 and 2005 the computer work gradually increased. In 2005 there were two major project product roll-outs. From 2005 to 2006 the work increased significantly and she was doing 90% computer work.
8. She described her actual duties. She said her work involved using two fingers of the left hand to click between six or seven programs using the Alt and Shift keys on the keyboard while moving the mouse with her right hand. She would reach over to her source material.
9. She said that from March 2006 she felt pain in each elbow which went down to the middle, fourth and little fingers, especially on the right hand. The little finger felt somewhat numb. By May she felt a ‘heaviness’ and by July the pain had increased such that movements like picking up the phone and mouse clicking created a lot of pain. She was also having difficulty sleeping because of pain. She also felt discomfort around her neck and shoulder. Usually, after resting at night, the pain would improve, only to return.
10. In August 2006 her workstation was significantly modified and the pain in her elbows reduced and there was some marginal improvement in the tingling in her fingers. Also the checking task that had involved the clicking between programs was stopped. She was advised to relocate some of her work equipment and, crucially, to take rest breaks.
11. She gave evidence that the physiotherapy she commenced in September 2006 assisted her. She attended at first bi-weekly and then only weekly because of the expense. The physiotherapist and her GP, Dr Penna advised her to try typing with her left hand to alleviate her right, but that caused an increase of pain in her left elbow. She presently sees a physiotherapist fortnightly.
12. From about October 2006, if she worked non-stop for about 1½ hours her neck and shoulders would start to ‘burn’. On the weekends she would rest but would continue to feel as if she had a headache. She took Nurofen for the headache and Panadol.
13. However there was another product roll-out in about October 2006, as there is from time to time. There was high absenteeism, and this increased work pressure for about a fortnight. There were a lot of phone calls from customers and these did not diminish just because there were fewer staff to deal with their problems. Her condition flared.
14. In early December the doctor advised her to cease typing altogether. She took two months leave between December 2006 and February 2007 and the pain in her elbows, neck and shoulders improved. She still had some numbness in the right hand but it was ‘not as heavy’. She resumed work, mainly using her left hand. She was given an ‘ergonomic mouse’. Her work was still largely computer-based but she was to have a ten minute break attending to other clerical duties after 20 minutes of computer work.
15. Her condition fluctuated and flared again in mid 2007 when there was another intense week or two following another product roll-out.
16. In October 2007 her duties changed completely and she became a ‘Subject Matter Expert’ where she had a lot more control over her time and could take more ‘manageable’ breaks. Overall her condition was more stable. She was doing about 70% computer work, and this entailed navigating between two applications rather than six or seven as before. Her left hand and elbow were ‘more settled’, and the pain in her right hand and elbow had significantly reduced.
17. There has been a slow reduction in pain but it has never gone away. Presently she has a slight dull pain in the left elbow and nothing in the left hand. She has occasional shooting pain. Her right arm constantly feels weak and she is unable to lift anything heavy such as the kettle. She has tried doing the full range of duties but this causes an increase in pain.
other evidence
18. A work colleague of Ms Thach, Catherine Byrne, provided a statement, dated 4 September 2008, and gave evidence. She said that from about March 2006 Ms Thach started complaining about issues with her neck, shoulders and arms. Ms Byrne said that Ms Thach would tell her that she was struggling to type and would have to take breaks. She said that Ms Thach would sometimes be ‘distraught’. She said Ms Thach would be typing and would say, almost daily, that her neck or her shoulders or her arms were hurting, and she would at times have heat packs around her neck.
19. Ms Byrne said that in 2007 she was asked to take over Ms Thach’s role so as to reduce her typing. She knew Ms Thach to have become a subject matter expert. She said Ms Thach also complained of headaches, but she could not say how often that occured.
20. Dr Carlo Penna, Ms Thach’s Treating Doctor, issued a number of Workcover medical certificates. The certificate of 27 July 2006 certified Ms Thach’s injuries as being consistent with the stated cause of "Bilateral elbow pain that was first noticed in March 2006 and has worsened" due to "Probable overuse/incorrect ergonomics". It certified Ms Thach as unfit to work. On 15 August 2006 he wrote that he considered the bilateral epicondylitis was a "work station related problem" and recommended "restricted hours at work station". By September 2006 Ms Thach was complaining to Dr Penna of neck and shoulder problems which the doctor described as "Neck, shoulder ligament strain" attributable to "poor workstation posture".
21. On 24 August 2006, an Ergonomic Workplace Assessment was conducted and recorded that Ms Thach:
is reporting chronic elbow, neck, shoulder and arm discomfort. Her job design does not encourage a comfortable working posture.
The Assessment reports that:
At present Monleng is uncomfortable when she straightens her elbows and by the end of the day her neck, shoulders and arms are uncomfortable.
The Assessment reported that Ms Thach's work position required her to reach for the keyboard and mouse over source documents in front of her.
22. On 30 October 2006, Dr Alex Ganora, Musculoskeletal and Pain Medicine physician, to whom Ms Thach was referred by her GP, reported that Ms Thach felt worsening pain which she attributed to the mouse and key operations of her work duties. Dr Ganora stated that Ms Thach clearly had bilateral lateral epicondylitis which was work related.
23. Dr Ganora also reported that Ms Thach had "pain at the base of the neck and suprascapular region" aggravated by extreme neck movement. She reported a burning sensation over the right occipital region. He inspected an X-ray of 29 August 2006 of the cervical spine which was normal except for minor changes at C4/C5.
24. On 27 April 2007, Dr Ganora reported that Ms Thach was:
…still unable to perform keyboard work with the right hand and her attempts to do so provoke radiating pain along the forearm to the elbow and shoulder and are associated with an increase in neck pain and headaches. Her level of pain still fluctuates day by day depending on the use of the right hand and pain is helped by physiotherapy treatments…
25. Dr Ganora's examination of the neck on that occasion indicated tenderness over the right C2/3 region, the occipital nerve and along the right levator scapulae muscle and exacerbation of pain by neck movement. Dr Ganora reported that Ms Thach was "free of symptoms when not working" and that she was:
sensitive to work positions and work related movements, affecting her ability both to perform keyboard tasks and to maintain prolonged seated postures of the neck and upper limbs.
He advised Ms Thach to continue physiotherapy.
26. On 5 November 2008 Dr Ganora provided a further report noting that Ms Thach’s neck pain and headaches and right arm symptoms persisted. He recorded that from October 2007 when her duties had altered her headaches were less frequent and her neck pain less severe.
27. Dr Ganora gave evidence that, in his opinion, the activities that will aggravate an existing epicondylitis are either forceful or repetitive movements of the wrist in a backward direction (‘dorsi flexion’) or extension of the wrist. Repetitive activities of a lesser intensity can also aggravate the condition. Repetitive keyboard and writing are examples of such movements of the wrist. Repetitive mouse movements by the positioning of the wrist in an extended position will sustain force as well. He was of the view that the repetitive nature of Ms Thach’s keyboard and computer work was the cause of the aggravation of her lateral epicondylitis. Flare ups which Ms Thach attributed to an increase in computer activity is consistent with his opinion, that her work activities aggravated her symptoms.
28. Further, he considered the sustained positioning of the head and neck and arms is part of what I would describe as repetitive in the sense that it is repetitively continuously sustained.
29. He observed that Ms Thach may have reported fluctuation in symptoms but viewed that as part of the continuing spectrum of ongoing symptoms of a similar kind to those that she has described all along.
30. He disagreed with Dr McGill’s view that if the applicant’s symptoms did not decrease when the keyboard activity decreased, then that would support a proposition that her work was not necessarily contributing to her epicondylitis. Dr Ganora said that once the condition is established, it does not switch off readily when the provocative tasks are interrupted.
31. On 17 October 2007, Professor Philip Sambrook, Rheumatologist, reported that Ms Thach:
was markedly tender over the lateral epicondyles bilaterally and had pain on resisted extension at the wrist and of the 3rd digit consistent with lateral epicondylitis.
He wrote that Ms Thach "continues to experience pain in her neck and shoulders especially on the right side" including "a sensation of weakness in the forearms, mostly on the right side". He reported that Ms Thach felt that:
her symptoms are aggravated by activities at work such as lifting documents, typing, mouse operation movements, gripping or any strength movements in the upper arms, including reaching out.
Professor Sambrook, based on literature and studies, opined that Ms Thach's work duties which involve a considerable amount of keyboarding and mouse work, caused Ms Thach's lateral epicondylitis.
32. Professor Sambrook reported that Ms Thach also had cervical symptoms which he opined to be related to her "excessive maintenance of her sitting posture or keyboarding work." He found Ms Thach to be unfit for full pre-injury duties.
33. Professor Sambrook gave evidence that there have been a number of studies which have shown that lateral epicondylitis can be related to certain upper limb activities. These have generally been forceful activities, especially gripping activities or repetitive movements where the common extensor tendon is placed under some stress. The issue of repetition is not as well established as force. He was of the view that the paper by Shiri does show that repetition plays some role in the aetiology of lateral epicondylitis, as well as gripping activities and force. They found that neither force nor repetition by themselves could be linked in that study to lateral epicondylitis.
34. The Kryger study which he utilised in his report concluded that intensive use of a mouse and to a lesser extent keyboard usage were the main risk factors for forearm pain. Use of a mouse for more than 30 hours a week, or a keyboard for more than 15 hours a week creates an increased risk of forearm pain.
35. He said that lateral epicondylitis is not usually due to a discreet episode of trauma but a series of micro traumas from repetition and force and grip and excessive movement.
36. He was of the view that the nature of the duties described by Ms Thach indicated that there was considerable repetition in association with computing work, and also some issues with her workstation. When her source materials that she had to access regularly were moved closer to her that seemed to make a difference. On that basis there seemed to be a reasonable relationship between her symptoms and her work conditions. There was an improvement in some of these symptoms when there was a change in her activities. Similarly, her symptoms fluctuated with an increase or decrease in certain types of work and workload.
37. He was of the view that her neck and shoulder pathology relates to postural issues at the workstation.
38. On 21 November 2006, Ms Lynette Harmond, Musculoskeletal Physiotherapist, reported that Ms Thach's "Grip strength was severely compromised bilaterally." Ms Harmond reported that Ms Thach suffered lateral epicondylar and forearm pain on the right when gripping at 5kgs force and on the left at 3kgs force. Ms Harmond stated "Static wrist and middle finger extension reproduced lateral epicondylar and forearm pain bilaterally." It was also stated that "Both wrist extensor bellies were found to be shortened and painful at approximately 45 degrees of wrist flexion bilaterally." Ms Harmond agreed with Dr Ganora that Ms Thach's symptoms were work related.
39. On 29 September 2006, Dr Lloyd Hughes, Orthopaedic Surgeon, reported that Ms Thach told him that she noticed the gradual onset of pain in both elbows. He was of the opinion that Mrs Thach may have been suffering from mild bilateral epicondylitis but that the condition was not work related. The crux of Dr Hughes’ opinion was that ‘tennis elbow’ is a degenerative condition involving the common extensor tendon origin of the forearm musculature, and is not related to either trauma or occupation.
40. On 4 June 2007, Dr Selby Brown, Consultant in Orthopaedic Surgery and Orthopaedic Rehabilitation, reported that Ms Thach complained of "heavy" headaches in the right temporo-occipital area extending to the right cervical paravertebral spinal musculature and into her right upper limb and the middle, ring and little fingers of her right hand, the doctor stated that Ms Thach:
developed a musculoligamentous strain of her neck and bilateral humeral epicondylitis as a consequence of the nature of her work duties with Telstra.
The doctor recommended that Ms Thach remain on the restricted duties consistent with Dr Penna's recommendations which were lifting be restricted to less than 1kg and left-handed keyboard duties for 20 minutes and then a ten minute break.
41. In his report he wrote that Ms Thach gave a history that most of the time she has a heavy headache in the right temporo-occipital area which extends to the right cervical para-vertebral spinal musculature. He explained that she had a heavy headache that extends beyond the head and down into the right upper limb. He agreed that the xray did not explain the diffused distribution of the symptoms. He found, on examination, very little tenderness to palpation in the neck, nor was he able to elicit any abnormal neurological findings in either upper limb. He attributed her complaints to musculoligamentous strain.
42. He agreed that it was important, in identifying a workplace cause, to observe the settling of the condition following adjustment of the work station and the time away from the aggravating activities. The converse however was not necessarily so.
43. On 25 July 2007, Dr Richard Honner, Orthopaedic Surgeon, reported to Telstra and on 5 December 2007, provided a supplementary report. A further supplementary report was dated 11 March 2009
44. On examination Dr Honner noted inconsistencies in Ms Thach presentation and, in particular, he observed the easy and active way in which she moved her neck and shoulders and arms prior to formal examination and immediate onset of sudden stiffness and inability to move the neck when active motion was requested. He commented that Mrs Thach’s neck complaints appear to be due to degenerative disease but that that distribution of pain is more widespread than you would otherwise have expected. He did not think there was any aggravation of degenerative disc disease. He said that her neck complaints appeared to be due to degenerative disease in the neck. In his opinion she would have developed her current symptoms as a natural progression of her pre-existing degenerative changes in the neck and elbows, irrespective of employment. In his first report, he accepted that Ms Thach has some incapacity for work arising from her degenerative neck condition.
45. Dr Honner gave evidence that lateral epicondylitis is a very common condition in the general community. He had seen cases where it is caused through repetitive activity, but did not consider that this is the situation in Mrs Thach’s case. He said that occasionally patients present with symptoms of lateral epicondylitis where they would associate those symptoms or increase in symptoms with computer typing or mouse type work. He noted from the history he had taken that as her keyboard work became less, and at one stage completely stopped, that her symptoms continued to give her problems and in general terms appeared to progress. He did not take a history of her going away on holidays and the symptoms getting better. Nor was there a history of a flare up in October 2006 which corresponded with the increase in keyboard work arising out of a product roll-out or of a further flare up in July 2007 which also coincided with the increase in keyboard work as a result of another product roll-out . Irrespective of the history he would not change his view.
46. It was his opinion that it was a coincidence, that her lateral epicondylitis symptoms, commenced at a time when she was undertaking keyboard work, computer work and mouse work. He would not accept that the repetitive nature of her work caused even a temporary aggravation of symptoms.
47. On 25 July 2007, Dr Neil McGill, Consultant Rheumatologist, reported to Telstra and on 19 December 2007, provided a supplementary report.
48. On examination he found there to be a marked difference in her neck movements during the formal examination in comparison to movements at other times, but he could not determine whether that was deliberate or not.
49. Ms Thach told him that although there had not been any change in her work activities, she explained that her section was constantly busy and usually short of staff.
50. Dr McGill did not think it plausible that Mrs Thach’s symptoms were explicable due to poor ergonomics, opining that, had she experienced symptoms relating to poor ergonomics, her symptoms would have been expected to have resolved promptly following correction of the ergonomic setup. She clearly described her symptoms were not improved despite adjustment of her workstation and modification of her work duties. Dr McGill did note though that there was some improvement when she went on long service leave.
51. When he examined Mrs Thach, Dr McGill was reluctant to form the view that she had bilateral lateral epicondylitis because her history was not consistent with that condition. He noted that tingling and numbness are not symptoms of lateral epicondylitis. She had markedly reduced grip strength with the right hand but demonstrated good power of wrist palmar-flexion and dorsiflexion bilaterally whereas he would have expected some potential weakness of dorsiflexion, but not of hand grip. Subsequently Dr McGill came to the view that he could not exclude the possibility that she currently has some lateral epicondylitis.
52. Because Ms Thach told him that she felt worried and upset, he formed the view that, on the presumption she has some genuine symptoms, those symptoms were a reflection of ‘unhappiness’. Dr McGill said in his evidence that it is common for people who are unhappy to present with widespread musculoskeletal symptoms. He was of the view that, regardless of the condition, if there was a physical component of her work duties that was contributing to her symptoms and you had the physical structure assessed and modified, then you would expect it to improve. He said that the fact that she felt better when she was not at work altogether, could be related to a change in physical activity, but could also reflect that she felt happier not being at work. He agreed that it was possible that if Ms Thach felt under pressure at work and work increased, she may have felt more unhappy and experience more symptoms.
53. In Dr McGill’s second report, he referred to a number of epidemiological studies, including those of Shiri and Kryger to which Professor Sambrook had also referred. He agreed that epidemiological studies are important in assisting clinicians to arrive at a diagnosis and answer questions as to causation in cases of the onset of bilateral lateral epicondylitis in a work situation. His interpretation of the Shiri study was that they found no evidence of a relationship between repetitive non-forceful work and epicondylitis. For lateral epicondylitis there was no association between the condition and different levels of repetitive movements of the hands and wrists. The Shiri study found that there was an association between forceful and repetitive activities and epicondylitis, and an association between repetitive and extreme non-neutral positions of the wrist and epicondylitis. But they specifically looked to see whether if you just had repetitive movements that were not forceful, whether there was any association, and they found none. He conceced he does not have the expertise of Professor Sambrook with respect to epidemiological studies. He acknowledged that epicondylitis is one of Professor Sambrook’s strong points.
54. In his report of 19 December 2007, Dr McGill expressed the view that he did not have any doubt that genuine lateral epicondylitis is often associated with physical activity. He also agreed with Dr Ganora that the type of forceful movement that can be associated with the onset of lateral epicondylitis is a dorsiflexion movement of the wrist. He did not consider Ms Thach’s extending her arms to undertake that keyboard and computer work to be extreme non-neutral position or posture for the hands and arms.
55. Had Mrs Thach experienced symptoms of lateral epicondylitis as a result of work activities, he would have expected her symptoms to have improved following modification or reduction in those activities. In contrast, she reported that her symptoms deteriorated after her workstation was assessed and modified. She reported that when she took a one-month period of long service leave in January/February 2007 she felt improved.
Consideration
56. Epicondylitis, as explained by Dr Ganora, Ms Thach’s treating specialist, is a degenerative condition of the attachment of the extensor of the forearm muscles that extend the wrist at the lateral epicondyle which is at the elbow. It is a small area where the muscle attaches to a point of bone which is ‘notoriously’ capable of breaking down because it has a poor blood supply, and becomes a painful area which is aggravated by movements of the wrist in certain directions. It is colloquially called tennis elbow.
57. The substance of Ms Thach’s case was that her computer keyboard, computer and mouse work increased in the period leading up to March 2006 such that these activities accounted for about 90% her duties.
58. Ms Thach gave a detailed account of her work duties which I accept. Although there was a gradual increase in Ms Thach’s computer work from 2000 to 2006, there was a significant increase due to product roll-outs from 2005, the year before her symptoms manifested.
59. Apart from Dr McGill, all of the medical practitioners support the proposition that Ms Thach suffers from bilateral epicondylitis. Even Dr McGill said though that he could not exclude the diagnosis. I accept that Ms Thach suffers bi-lateral epicondylitis.
60. It was conceded on Ms Thach’s behalf that she had a predisposition or an underlying condition of lateral epicondylitis, but that she was asymptomatic prior to March 2006. Her inability to perform her duties and her need for pain relief was corroborated by her work colleague, Ms Byrne. I am satisfied that she first suffered an impairment or first sought medical treatment on 27 July 2006 when she first attended Dr Penna. She had flare ups in October 2006 and July 2007 which corresponded, and I accept from her evidence, with an increase in keyboard work due to a product roll-out at those times.
61. I accept the applicant’s evidence that she had the onset of symptoms due to the overload of work. She complained to Dr Penna in July 2006, who recorded bilateral elbow pain from March, which worsened in May. By August she had neck and shoulder pain as well. In submissions much was made by the Respondent of the history Ms Thach gave to various doctors of a gradual increase in symptoms and of her failure to mention an increase in computer tasks. I do not consider this to be of any consequence. She was consistent in her account of significant computer duties.
62. It was also submitted that, as there was no amelioration in Ms Thach’s symptoms when her duties were modified, that the connection between her duties and her symptoms was doubtful. I was referred to Dr Penna’s clinical notes, of 29 August 2006 wherein Ms Thach first complained of neck and shoulder pain as well in her elbows. She told him her left arm pain had worsened since adjustments to her workstation. Also, Dr Ganora recorded in his report of 30 October 2006 that despite workplace modifications her symptoms persisted. Dr Penna recorded in December 2006 that her pain and weakness comes on after using a mouse only briefly. The consistent evidence though was that her symptoms improved during long leave in December-February but quickly returned. Further consultations show the fluctuating nature of her symptoms and complaints. Dr Selby-Brown observed that at the time of his examination of Mrs Thach in June 2007, her condition appeared to be considerably more settled than during 2006 and this may well have been due to the adjustments that have been made to her work station.
63. Significantly, though improvement was shown during her long absence from work. Some improvement was also shown with intensive physiotherapy but worsened markedly after it ceased as she could no longer pay for it. Then she changed her activities at work to becoming a subject-matter expert and undertook less typing. Dr Ganora also said that once the condition is established, it does not switch off readily when the causation task ceases. I accept this as providing further explanation for the failure of her symptoms to show long-term improvement with work modification.
64. Dr Ganora was the treating specialist. He has lengthy experience treating lateral epicondylitis and symptoms associated with keyboarding. He said aggravating symptoms included repetitive movements where the wrist is moving in a backward direction. In his opinion repetitive keyboard work and mouse movement would aggravate the symptoms of lateral epicondylitis and was the most significant contributing factor in this case.
65. Dr Selby-Brown said that the lateral epicondylitis was a product of the nature of conditions of Ms Thach’s work, having regard to the history of progressive increase in keyboard and computer work. In his opinion, repetitive movement and non-neutral posture were the cause of her injuries. He said that he had formed that view based on the history given by Ms Thach, and the report of Christine Aitkin, which is referred to in his report. That report contained considerable detail of Ms Thach’s work, including observations as to the location of her work tools and as to her posture and work position.
66. Dr Honner and Dr McGill were of the view that Ms Thach’s work did not make a material contribution to her condition. Dr McGill, so far as causation, refers to a manifestation of symptoms relating to ‘unhappiness’, and noting that people are often happier to be away from work, and this is the likely explanation for the improvement in Ms Thach’s condition while on leave. Dr McGill is alone in this novel view.
67. Dr McGill conceded though that an increased computer, keyboard and mouse work is one consideration when determining causation. Dr McGill formed his view largely on the basis of epidemiological studies, and conceded that Professor Sambrook is an expert in the field of epidemiological studies. The Kryger study to which Professor Sambrook referred made the connection between computer work and increased risk of forearm pain. I prefer the interpretation of the epidemiological evidence by Professor Sambrook, having regard to his expertise in the area, such expertise being conceded by Dr McGill.
68. It was contended that the neck, shoulder and associated headache injury is a separate injury, and that was the view of Professor Sambrook, Dr Ganora and Dr Selby-Brown. The medical reports support the proposition that at the time Ms Thach started to have symptoms related to her lateral epicondylitis she also started having symptoms relating to her neck, arm and shoulder.
69. It was conceded on Ms Thach’s behalf that she had a predisposition or an underlying asymptomatic degenerative condition of the cervical spine which was rendered symptomatic in about March 2006. All the doctors agree that the radiological material with respect to the upper cervical spine is almost normal. The MRI was largely unhelpful.
70. Professor Sambrook, was of the view that the cervical symptoms are mechanical in nature and may be related to poor static position, and that there seems to be some relationship between the symptoms and the excessive maintenance of her sitting position and keyboarding work. Dr Selby-Brown said that it is a muscular ligamentous strain of the neck, as a result of the nature and conditions of her employment. The views of Drs Honner and McGill were, it appears, influenced by their observations of the Applicant which they considered to be inconsistent with her complaints. I prefer the view of Professor Sambrook and Dr Selby-Brown.
71. Section 4(1) of the Act sets out the definition of “injury” and provides that an injury suffered by an employee that arose out of, or in the course of, the employee’s employment satisfies the definition of “injury” for the purposes of the Act.
72. In light of the observations above, I find that Ms Thach suffered two work-related conditions, a musculature, neck cervical injury and shoulder injury, and also a bilateral lateral epicondylitis condition which were materially contributed to by her work at Telstra. As a result, Telstra is liable to pay compensation to Ms Thach pursuant to sections 14, 16 and 19 of the Act.
Decision
73.The Administrative Appeals Tribunal sets aside the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER
Signed: ..................[Sgd]............................................................
AssociateDates of Hearing 20, 21 and 22 July 2009
Date of Decision 11 September 2009
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Slater and Gordon Lawyers
Counsel for the Respondent Mr M BestSolicitor for the Respondent Sparke Helmore Lawyers
SCHEDULE 1
(a) Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of “injury” contained within subsection 4(1) of the Act which states:
“injury” means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
(b)Section 14 of the Act deals with compensation for injuries and as relevant states:
14 Compensation for injuries
(1) 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.
(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.
(c)Section 16 of the Act deals with compensation for medical and other expenses and, as relevant, states:
16 Compensation in respect of medical expenses etc.
(1) 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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
4)An amount of compensation payable by Comcare under subsection (1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.
(5)Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first‑mentioned person.
(d)Section 19 of the Act deals with compensation for injuries resulting in incapacity.
SCHEDULE 2
Exhibit List
Number Exhibit
A1 Statement of Catherine Byrne dated 4 September 2008;
A2 Medical report of Professor Sambrook dated 17 October 2007;
A3 Medical report of Dr Selby-Brown dated 4 June 2007;
A4 Medical report of Dr Ganora dated 27 April 2007;
A5 Medical report of Dr Ganora dated 5 November 2008;
A6 Patient Notes of Dr Penna dated 18 June 2002 – 14 August 2007;A7Four pages of clinical notes of Dr Ganora – starting at entry date 26/10/2006 plus letter dated 17 April 2007 from Dr Penna to Dr Ganora;
R1Supplementary medical report of Dr Hughes dated 7 May 2007;
R2Medical report of Dr McGill dated 25 July 2007;
R3Medical report of Dr Honner dated 25 July 2007;
R4Medical report of Dr Honner dated 5 December 2007;
R5Medical report of Dr McGill dated 19 December 2007;
R6Medical report of Dr Honner dated 11 March 2009;
R7MRI report dated 8 September 2008 of Dr Lucas from North Shore Radiology & Nuclear Medicine.
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