Trevan and ADI Limited
[2005] AATA 891
•14 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 891ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/393
Nº V2005/94GENERAL ADMINISTRATIVE DIVISION
Re: MARY ELLEN TREVAN
Applicant
And:ADI LIMITED
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date:14 September 2005
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and substitutes a decision that the respondent is not liable to pay compensation to the applicant for injury to her right index finger from 16 July 2001 to the date of this decision.
(sgd) G.D. Friedman
Senior Member
COMPENSATION - pain in right index finger - psoriatic arthritis - repetitive work - whether work-related - whether aggravation
Safety, Rehabilitation and Compensation Act 1988 s 14(1)
Rosillo v Telstra Corporation Limited (2003) 77 ALD 396
REASONS FOR DECISION
14 September 2005 G.D. Friedman, Senior Member
1. This is an application by Mary Ellen Trevan (the applicant) for review of a decision of a delegate of ADI Limited (the respondent) dated 12 February 2004 (V2004/393). The delegate affirmed a determination of the respondent dated 20 November 2003 to disallow a second claim for compensation for partial medial ligament tear right index finger. The applicant also lodged an application for review of a decision of a delegate of the respondent dated 3 February 2005 (V2005/94). The delegate affirmed a determination of the respondent dated 13 October 2004 to disallow a claim for rehabilitation and compensation for an injury to the right index finger including medial ligament injury, aggravation of psoriatic arthritis, and synovitis/tenosynovitis.
2. At the hearing on 11 February 2005, 9 June 2005 and 30 August 2005 Mr M. Carey of counsel represented the applicant and Mr J. Lenczner of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T46) (V2004/393) and (T1-T12) (V2005/94) and five exhibits (Exhibits R1-R5) lodged by the respondent.
BACKGROUND
4. The applicant was born on 18 October 1947 and joined the respondent in 1981 as a production employee in Footscray, carrying out duties involved in the manufacture of ammunition, cartridges, shells and cases for a range of weapons. In 1984 the respondent re-located to Benalla, and the applicant and her family moved there.
5. On 9 July 2000 the applicant was working in the powder loading room and was engaged in placing reject cartridges into a round gauge to test their suitability for further use. At the end of the day she noticed that her right index finger was swollen, and the next day she reported soreness in the finger. She attended her general practitioner, who referred her for physiotherapy.
6. On 9 August 2000 the applicant suffered further injury to her right index finger and her left elbow when she fell to the floor when attempting to sit on a chair (the chair incident). On 30 October 2000 the applicant lodged a claim for compensation for partial medial ligament tear right index finger. On 23 November 2000 the respondent accepted liability and paid compensation to the applicant for incapacity and medical expenses.
7. On 28 May 2001 the applicant became a training administration co-ordinator, which occupied 60 per cent of her time, and the remaining 40 per cent was spent as a production employee. On 16 July 2001 the respondent issued a determination ceasing liability for compensation, on the basis that the applicant had been fit to resume her normal duties and her condition had resolved.
8. On 9 December 2002 the applicant submitted a further claim for compensation for partial medial ligament tear right index finger, citing 9 July 2000 as the date of injury. On 20 November 2003 the respondent issued a determination disallowing the claim. On 12 February 2004 the respondent made a decision affirming the determination.
9. On 31 March 2004 the applicant lodged an application with the Tribunal for review of the decision of 12 February 2004.
10. On 30 June 2004 the applicant submitted a claim for compensation for a right finger injury, including medial ligament injury, aggravation of psoriatic arthritis and synovitis/tenosynovitis. On 13 October 2004 the respondent issued a determination denying liability for compensation on the basis that the applicant’s psoriatic arthritis was temporarily aggravated by her employment but that the aggravation of her condition ceased on 16 July 2001. On 3 February 2005 the respondent made a decision affirming the determination.
11. On 7 February 2005 the applicant lodged an application with the Tribunal for review of the decision of 3 February 2005.
12. The issues before the Tribunal are whether the psoriatic arthritis suffered by the applicant was a pre-existing condition, and whether the temporary aggravation ceased on 16 July 2001.
EVIDENCE
13. In a Minor incident report dated 14 July 2000 (T5) the applicant stated:
Due to so many cartridges failing chamber & having to sort so many I have injured my right index finger & right upper arm approx total sorted on this day on day shift 6000.
In an Incident report, investigation & action plan dated 9 August 2000 (T6) the applicant stated:
I went to sit on chair to do a reading. [The] chair moved as it had wheels and I fell on the ground.
14. In a Claim for rehabilitation and compensation dated 30 October 2000 (T3) the applicant stated that an injury to her right index finger occurred or was noticed by her on 9 July 2000 at 2pm, and that she first had medical treatment by Dr Lourensz, her general practitioner, on 11 July 2000. She stated:
It started while I was sorting a lot of rejects on the chamber one day. We had 6000 to sort. I further injured my finger on the 9th August when I fell off a chair in the Powder Room & put my hands out to stop my fall.
15. The applicant gave oral evidence that before July 2000 she had experienced no injuries to her right hand. She said that on 9 July 2000 she was examining reject cartridges by placing each cartridge in a round gauge and pushing the cartridge with her right index finger, then using a metal scraper to determine whether the cartridge was aligned. If the cartridge was not aligned it was discarded.
16. The applicant told the Tribunal that she had processed about 6000 to 7000 cartridges during the day, and at the end of the day her right index finger was swollen. She said that the next day it became painful, and when it had not improved she visited her general practitioner, who arranged an x-ray and referred her for physiotherapy, which did not ease the pain. She stated that about one month later she was sitting on a chair when she fell and injured her right hand when she tried to prevent the fall by using her hands to protect herself. The applicant explained that since July 2000 she has not been able to bend her finger fully, and the joint is always painful, but she is having no particular treatment at present.
17. The applicant noted that since assuming her new role as training administration co-ordinator in March 2001 she spends some time each day using the computer, and performs office duties as well as operating machines and carrying out duties as production employee. In relation to psoriatic arthritis the applicant stated that she takes prescribed medication and the condition seems to have cleared up around her neck and back.
18. Under cross-examination the applicant agreed that before July 2000 she had experienced pain in her neck and her back, which had been treated with anti‑inflammatories. She said that she is able to perform normal household tasks and can drive a motor vehicle, although the swelling in her right index finger flares up from time to time.
19. Dr C. Lourensz, general practitioner, Benalla, Victoria, gave oral evidence that the applicant has been a patient at his practice since 1994 and he has treated her since 1998. He said the applicant consulted him on 11 July 2000 about pain in her left shoulder and right index finger. He said that an x-ray in August 2000 revealed a joint strain, for which the normal treatment was rest. He stated that he was not aware of any prior injury to the applicant’s right index finger.
20. Dr Lourensz told the Tribunal that the finger injury did not appear to be related to her arthritic condition. He noted that the applicant’s finger had not shown much improvement with respect to pain arising from the condition. Under cross‑examination Dr Lourensz said that when he examined the applicant he assumed that the finger injury was a soft tissue ligament strain. He stated that he was in no doubt that cartilage damage arose from a repetitive injury in the workplace, which may have resulted from intermittent rather than constant force to the joint. Dr Lourensz maintained that the applicant’s main problem has been trauma to the finger and not psoriatic arthritis; although he conceded that there was a possibility that arthritis was the cause.
21. In a written report dated 15 December 2004 (T10) Dr D. Lewis, rheumatologist, noted that the applicant presented with restricted movement of the interphalangeal joint of the second digit of the right hand. He stated:
The history suggests a soft tissue injury occurring in the workplace with the subsequent development of features consistent with psoriatic arthritis.
According to her history her finger has never regained full range of motion following the initial work induced injury.
In my opinion this woman’s symptoms of pain and loss of movement in the index finger stem from a soft tissue strain occurring at the work place in the work tasks as described. I cannot convince myself of any aggravation having occurred as a result of the fall off a chair. Subsequently she has been diagnosed with psoriatic arthritis which is now well controlled with medication.
In my opinion her employment has been a material contributing factor to the restriction of movement of the index finger.
22. In oral evidence Dr Lewis stated that when he first saw the applicant he could not determine whether she was suffering from psoriatic arthritis, although the initiating event was work-related, and the soft tissue injury probably led to psoriatic arthritis. Dr Lewis stated that an x-ray three weeks after the incident showed soft tissue swelling. Under cross-examination Dr Lewis agreed that if the psoriatic arthritis had been present at the time of the incident the applicant would experience soreness before swelling occurred. He also agreed that the applicant should have recovered from a mild soft tissue injury. Dr Lewis stated that there was no mention in his report that psoriatic arthritis had resulted from a soft tissue injury because he was not in a position to diagnose psoriatic arthritis in the absence of clinical criteria.
23. In an article entitled Clinical, laboratory and immunogenetic aspects of post-traumatic psoriatic arthritis: A study of 25 patients (Exhibit R4) and published in Clinical and Experimental Rheumatology 1998, Dr L. Punzi and others carried out research into the relationship between psoriatic arthritis and traumatic events such as motor vehicle and other accidents. The study found no observable relationship between the severity of the injury and the extent of the subsequent arthritis.
24. In a written report dated 17 April 2001 (Exhibit R1) Dr D. Barraclough, rheumatologist, stated that in July 2000 the applicant’s left shoulder became painful, with subsequent pain in her neck, right trapezius area and lumbar spine. He said that she had some soreness in the PIP joint in the second right finger but this has resolved. In a further written report dated 17 September 2003 (T35) Dr Barraclough stated that he diagnosed psoriatic arthritis, which is a chronic condition, and that soft tissue swelling would be expected from the psoriatic arthritis. He said that, given the repetitive nature of the applicant’s work, it is likely that the psoriatic arthritis was exacerbated by the work. Dr Barraclough said:
Any aggravation of symptoms would be measured in weeks or several months after the event. If she kept on with that work, it is likely the aggravation would persist, but with lighter work this should not be the case.
25. In a further written report dated 10 September 2004 (Exhibit R2) Dr Barraclough stated:
a) My most recent examination was on 5 April 2004. The findings then were of some swelling and tenderness in the proximal interphalangeal joint of the right index finger with some swelling and tenderness in the flexor tendon of that digit. These are typical changes of psoriatic arthritis with synovitis in the PIP joint and the flexor tendon.
b) Psoriatic arthritis is a condition of unknown cause and in my opinion would have commenced regardless of her work. However, as stated in my earlier report, repetitive or significant heavy physical work would be a significant, aggravating factor for psoriatic arthritis.
26. In oral evidence Dr Barraclough stated that the Punzi research considered single traumatic events rather than the repetitive injury claimed by the applicant. Under cross-examination Dr Barraclough agreed that the applicant had reported swelling and pain to the right index finger in consultations between 2001 and 2004. He said that the applicant did not refer to the chair incident during his examinations of her, but agreed that it could be a mild traumatic incident.
27. In a written report dated 11 November 2004 (T8) Dr J. Silver, consultant occupational physician, stated that he visited the applicant’s worksite on 11 November 2004 to provide comments on the vocational rehabilitation and appropriate duties for the applicant. Dr Silver noted the diagnosis of psoriatic arthritis affecting the PIP joint of the right index finger. He observed the applicant using the gauge and concluded:
This is still a light effort using whatever finger, usually the index finger, if the cartridge doesn’t sit fully into the gauge. Mrs Trevan said that doing this work repetitively may exacerbate her finger pain but this is only temporary and she does not need to use her right index finger in any event.
28. In a further written report dated 11 November 2004 (T9) Dr Silver stated:
Mrs Trevan has psoriasis and psoriatic arthritis with an ongoing synovitis and degenerative changes in the right proximal interphalangeal joint of the right index finger.
…
To summarise, acute post-traumatic flare ups of psoriatic arthritis, if the trauma occurs at work, could be deemed to be temporary aggravations of the underlying constitutional condition, but the underlying pathology itself is a constitutional/auto‑immune process and is neither caused nor aggravated by her work.
29. In oral evidence Dr Silver stated that the light effort involved in operating the gauge would be similar to using a computer mouse or placing a cartridge in a weapon. He said that he could find no evidence of ligament damage to the applicant’s finger, and that the force necessary to produce such an injury would be severe, such as in a football injury. Under cross-examination Dr Silver agreed that any activity (including a fall from a chair) might cause a flare-up of the psoriatic arthritis but the effect would only be temporary. He also stated that the chronic inflammation of the finger did not result from trauma associated with using the gauge.
30. In a written statement dated August 2005 (Exhibit R5) Mr T. Reaburn, Group Co-ordinator, Cartridge Assembly Area and Packing Team, who was the applicant’s supervisor until about three years ago, said that he did not believe it likely that an operator in the relevant area would be able to check more than 2000 cartridges in one day. He stated that, in his experience, it is unlikely that more than 5% of cartridges taken from a drawer of machine rejects were likely to have been defective after testing with the gauge. Mr Reaburn stated:
As part of the operation of checking the cartridges rejected by the machine, the operator, in July 2000, before that time and since, is likely to have at times pushed cartridges into the gauge if, on scraping, part of the cartridge was elevated. The requirement was that pressure of no more than 90 newtons, equivalent to 20 pounds, of pushing pressure was to be applied when pushing the cartridge into the gauge. In my experience and observation, that pushing pressure is light and is equivalent to tapping a key on a keyboard. In any event, no more than the approximate 5% of cartridges ultimately found to be defective would require this pushing pressure.
31. Mr Reaburn also stated that if an operator observed in a batch of machine-rejected cartridges that many of the cartridges were sequentially defective, the operator is likely to have discarded the container of cartridges rather than continuing to inspect a significantly defective batch. He noted that at the end of a shift there was no expectation that the entire batch be inspected, so cartridges remaining in the machine rejects drawer would be left to be inspected by the next shift.
32. In oral evidence Mr Reaburn said that the vast majority of rejected cartridges, when placed in the gauge, would be satisfactory and would not need to be pushed by the operator. He said that he was not aware of any need for additional effort to push cartridges in the gauge in July 2000. Under cross-examination he agreed that his statement that 20 newtons, or 20 pounds, of pressure would be expended on pushing a cartridge in the gauge was an estimate he obtained from a publication. He also agreed that the number of rejected cartridges varied from day to day.
33. In a written report dated 30 August 2004 (T4) Dr T. Kostos, rheumatologist, stated that he took a history from the applicant that in 2000 she was pushing cartridges into a round gauge with her right index finger and over the period of a day she tested approximately 6000 to 7000 cartridges. Dr Kostos concluded:
Psoriatic arthritis is an auto-immune condition which is seen in some patients who have psoriasis. However psoriatic arthritis is unusual in that it has been documented that the condition can begin following trauma and therefore I would accept that the incident described where this woman was pushing cartridges into a gauge with her index finger was a significant contributing factor to the development of her arthritis.
Dr Kostos noted that her symptoms had improved, but that at times her employment could cause a flare-up of symptoms.
34. In a written report dated 3 March 2003 (T21) Dr E. Khoury, orthopaedic surgeon, stated that the psoriatic arthritis suffered by the applicant is an aggravation of a pre-existing condition and is consistent with the history given of the two injuries sustained on 9 July 2000 and 9 August 2000. Dr Khoury said that the problem has been persistent in that it has not responded to previous treatment, and ongoing inflammation has been resistant to anti-inflammatory medication.
35. In a written report dated 7 March 2003 (T23) Miss P. Keith, orthopaedic surgeon, stated that she took a history that the applicant had to push cartridges into a gauge with her right index finger, and that on one particular day 2 years ago, she claimed that she probably did this up to 7000 times, resulting in swelling and soreness to the PIP joint. Miss Keith observed slight swelling of the PIP joint, and recommended hand therapy or cortisone injections if the if there is a flare-up. In a further written report dated 25 August 2003 (T29) Miss Keith noted that the finger continued to be swollen and painful.
CONSIDERATION OF THE ISSUES
36. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
14.(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.
37. Mr Carey submitted that the applicant described the events of 9 July 2000 without embellishment and to the best of her ability, and that she had not reported any pain or swelling in her right index finger before then. He said that on that day about 6000 to 7000 cartridges were rejected by the machine, and the applicant was required to place a large number in the gauge. He noted that the applicant experienced pain and swelling that night and the symptoms have persisted since then, as recorded by Dr Barraclough, and that the prescribed medication (prednisolone) masked the symptoms.
38. Mr Carey noted that treatment expenses (including hand therapy) in relation to the right index finger have been paid by the respondent since 16 July 2001, and there is no other event that has displaced the compensable injury. He said that all symptoms other than pain and swelling to the PIP joint have resolved, so the ongoing symptoms are part of the aggravation of the injury and are compensable.
39. Mr Carey stated that the injury report in respect of the chair incident was consistent with the applicant’s evidence, and the incident should be accepted as a painful event.
40. Mr Lenczner submitted that the applicant manifested the symptoms of psoriatic arthritis around 8 or 9 July 2000, rather than having suffered an injury which she would have reported immediately, because she consulted Dr Lourensz on 11 July 2000 and he recorded that she suffered pain to the right index finger and left shoulder. Mr Lenczner noted that Dr Lourensz did not record in his clinical notes any claim by the applicant regarding sorting of cartridges on that day or that such work caused the pain. Mr Lenczner stated that there were inconsistencies in the applicant’s evidence and noted that the minor incident report was dated 14 July 2000 which was after her consultation with Dr Lourensz. He suggested that an inference should be drawn that the applicant has reconstructed the events to bolster her claim, and that her reference to 2pm in her claim for compensation was a guess.
41. Mr Lenczner stated that the history given by the applicant to medical practitioners is consistent with the medical evidence that the applicant suffered from a pre-existing psoriatic arthritis which may have been aggravated in July 2000, but the effects of aggravation were temporary. He said that the Tribunal should accept Dr Barraclough’s evidence that the symptoms are persistent because psoriatic arthritis is a chronic condition that would have commenced regardless of her work, and that any aggravation would be measured in weeks or several months after the aggravating event or events, and by 16 July 2001 the effect of any aggravation had ceased. He said that Dr Silver supported this evidence.
42. In respect of the chair incident, Mr Lenczner submitted that, even on the applicant’s own evidence, the incident did not have a long-term effect on her and did not play a large role in any aggravation of the psoriatic arthritis.
43. Mr Lenczner submitted that there was no persuasive medical or other evidence that the applicant suffered ligament or soft tissue injury (or other form of trauma) to her right index finger. But he said, that in any event, Dr Lewis acknowledged that any soft tissue injury would have resolved quickly. In respect of the article by Dr Punzi and others, Mr Lenczner stated that this is of limited value because its findings are speculative and it deals with accidents that are not relevant to the application before the Tribunal.
44. In respect of other matters raised at the hearing, Mr Lenczner noted that Dr Lourensz had not recorded any history of the applicant experiencing problems with her finger as a result of her work with the gauge. He submitted that it was not possible to have performed up to 7000 tests on cartridges per day. Mr Lenczner referred to Mr Reaburn’s estimate of 2000 rejected cartridges per day, together with his evidence that 95 per cent of the rejected cartridges would not require pressure from pushing with the finger, and that any pressure would be light.
45. Mr Lenczner submitted that the clinical notes show that the applicant has a history of flare-ups in her condition from time to time, and that this is not unusual in psoriatic arthritis.
46. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
47. The Tribunal notes that the applicant consulted Dr Lourensz on 11 July 2000 in relation to pain and swelling in her right index finger and that she did not refer to her work activities that had involved extensive use of the gauge and repetitive movements involving her finger. She lodged her incident report on 14 July 2000. The Tribunal accepts Mr Lenczner’s submission that these actions, together with the medical evidence, suggest that the applicant manifested the symptoms of psoriatic arthritis at this time, and that she did not suffer an injury as a consequence of her employment.
48. The Tribunal takes into account that Dr Lewis originally stated that the applicant had a soft tissue injury that led to psoriatic arthritis, but that under cross‑examination he acknowledged that she would have recovered from a soft tissue injury; and that soreness in her finger would have been experienced before swelling if psoriatic arthritis had been present. The Tribunal accepts Dr Barraclough’s evidence that any soft tissue swelling would be expected from psoriatic arthritis, rather than a soft tissue injury with subsequent development of psoriatic arthritis as suggested by Dr Lewis. This view was supported by Dr Silver. In all the circumstances the Tribunal finds that the applicant suffered from pre‑existing psoriatic arthritis.
49. In respect of the chair incident there is little medical or other evidence to suggest that this contributed in any meaningful way to the applicant’s condition.
50. In respect of the work activity on 9 July 2000, the Tribunal accepts the evidence from Mr Reaburn that 95% of cartridges rejected by the machine would be accepted when tested in the gauge, and that the actions in testing the cartridges required a light pressure with the finger. The Tribunal takes into account that after 9 July 2000 the applicant reported symptoms of pain and swelling in the right index finger. The Tribunal accepts the submission by Mr Lenczner that, on the medical evidence, this represented an aggravation of the pre-existing psoriatic arthritis.
51. The Tribunal takes into account the evidence from the applicant that the swelling in her right index finger flares up from time to time. The Tribunal accepts the evidence from Dr Barraclough in his report dated 17 April 2001 (Exhibit R1) that the applicant had some soreness in her PIP joint but that this had resolved, and that soft tissue swelling could be expected from psoriatic arthritis. The Tribunal notes that in Exhibit R2 Dr Barraclough referred to some swelling or tenderness that could be expected with psoriatic arthritis, and that heavy physical or repetitive work would be a significant aggravating factor.
52. The applicant changed her duties in May 2001 to mainly training and administration, and her duties since then have involved keyboard use, but no repetitive work using the gauge. In all the circumstances the Tribunal accepts the opinion by Dr Barraclough that any aggravation of symptoms arising from work‑related activities would be measured in weeks or months after the event, and with lighter work such aggravation should not persist. For these reasons the Tribunal accepts the submission from Mr Lenczner that by 16 July 2001 the effects of any aggravation ceased.
53. The Tribunal takes into account that the Federal Court in Rosillo v Telstra Corporation Limited (2003) 77 ALD 396 held that it is beyond the power of a delegate to determine that there is no entitlement to compensation under any sections of the Act from the date of the determination. In these circumstances the appropriate decision of the Tribunal is to set aside the decision under review and substitute a decision reflecting the Tribunal’s findings. As the applicant has been unsuccessful she is not entitled to an order for costs.
DECISION
54. The Tribunal sets aside the decisions under review and substitutes a decision that the respondent is not liable to pay compensation to the applicant for injury to her right index finger from 16 July 2001 to the date of this decision.
I certify that the fifty-four [54] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 11 February 2005
9 June 2005,30 August 2005
Date of decision: 14 September 2005
Counsel for applicant: Mr M. Carey
Solicitor for applicant: Maurice Blackburn Cashman
Counsel for respondent: Mr J. Lenczner
Solicitor for respondent: Hunt & Hunt
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