Trisna-Halim and Comcare (Compensation) - [2017] AATA 1423

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2016/6627
General Division  )
Re: Irma Trisna-Halim
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:              Deputy President B W Rayment
DATE:   20 September 2017
PLACE:                    Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

Order 1 of the decision on the cover page is changed to read:
The decision under review is set aside and substituted with a decision that the respondent is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of the aggravation of bilateral carpal tunnel syndrome.

Paragraph 33 of the decision is changed to read:
Following from the above, the decision under review is set aside and substituted with a decision that the respondent is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of the aggravation of bilateral carpal tunnel syndrome.

...........................[sgd]........................................
Deputy President B W Rayment
Trisna-Halim and Comcare (Compensation) [2017] AATA 1423 (1 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6627
Re:Irma Trisna-Halim
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Deputy President B W Rayment
Date:1 September 2017
Place:Sydney

1.The decision under review is set aside and substituted with a decision that the respondent is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of bilateral carpal tunnel syndrome.

2.The respondent is to file with the Tribunal and serve on the applicant, written submissions on costs within 14 days of the date of these reasons.

3.The applicant is to file with the Tribunal and serve on the respondent, reply submissions on costs within 14 days thereafter.

.......................[sgd].................................................
Deputy President B W Rayment
Catchwords
COMPENSATION – accepted bilateral carpal tunnel syndrome condition – whether employment contributed to aggravation to a significant degree – whether repetitive keyboard and mouse use exacerbates symptoms of carpal tunnel syndrome – decision under review set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 5B, 14
Cases
Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 Lloyds Rep 1; [1985] 1 WLR 948
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Deputy President B W Rayment
1 September 2017
BACKGROUND

The applicant seeks review of a decision of the respondent made on 29 November 2016 rejecting her claim for compensation made under s 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the Act”). The applicant appeared before me unrepresented, and Comcare was represented by Mr Dean of the Australian Government Solicitor.
Ms Trisna-Halim suffers from carpal-tunnel syndrome in both wrists, more pronounced on the right wrist. There was no issue at the hearing that she does suffer from that condition,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1423
Decision Date: 20 September 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Trisna-Halim against a decision by Comcare regarding her claim for compensation for bilateral carpal tunnel syndrome. Ms Trisna-Halim, employed by the Department of Defence since 1994 in a computer-intensive role requiring approximately 80 per cent of her working week on keyboard and mouse use, experienced intermittent pins and needles in her forearms and hands from early 2016. The dispute centred on whether her employment had contributed to the aggravation of her carpal tunnel syndrome to a significant degree.

The court was required to determine whether repetitive keyboard and mouse use exacerbates the symptoms of carpal tunnel syndrome, and if so, whether Ms Trisna-Halim's employment had aggravated her condition to a significant degree, thereby satisfying the requirements of section 5B of the relevant Act. This section mandates that employment must contribute to the condition complained of to a significant degree, established on the balance of probabilities.

The Deputy President found that while the medical literature provided limited assistance on the specific question of aggravation of carpal tunnel syndrome by repetitive keyboard and mouse use, the evidence of Ms Trisna-Halim, supported by the opinions of medical practitioners, particularly Dr Dowda, was persuasive. Dr Dowda indicated that while keyboard activities alone might not be a precipitant, evolving carpal tunnel syndrome could have been aggravated by excessive typing. The Deputy President concluded that the evidence satisfied him that Ms Trisna-Halim's condition was aggravated by her keyboard and mouse use at work to a significant degree.

Consequently, the decision under review was set aside and substituted with a decision that Comcare was liable to pay compensation to Ms Trisna-Halim in respect of her bilateral carpal tunnel syndrome. The court also directed written submissions on the matter of costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

These proceedings are not concerned with onus of proof, but rather with the standard of satisfaction which an administrative decision-maker must attain in finding the relevant facts.[2] Section 5B of the Act replaced legislation in an earlier enactment which required that the employment be a contributing factor to the condition. In discussing that language the Full Court of the Federal Court described it as requiring that “features of the employment did in fact and in truth contribute to the condition complained of” and added that the “causal connection must be established on the probabilities and not left in the area of possibility or conjecture”.[3] That much is also, in my opinion, required by s 5B. The contribution which s 5B requires to be shown on the balance of probabilities is one of a significant degree.[2] Cf the remarks of Brennan J in Bushell v Repatriation Commission [1992] HCA 47 at [3]; (1992) 175 CLR 408 at 424-5.[3] Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323.EVIDENCE Ms Trisna-Halim has worked for the Department of Defence since 1994. She has worked in Accounts Payable and Purchasing since she began and is now a Purchasing Officer. Her work is computer-intensive and requires repetitive keyboard and mouse use, for approximately 80 per cent of her working week. In recent years her workload has been very high, particularly because of the reduction in numbers of staff in her section, and her job has required additional effort and pressure to meet deadlines. Her work station was ergonomically optimized late in 2016 for the first time. In early 2016, she noted that “her right upper limb (forearm and hand) was experiencing pins and needles intermittently and to a lesser extent the same symptoms occurred in her left hand…waking in the morning with tightness and paraesthesia in a distribution in the hand consistent with the median nerve” (report of Dr Dwight Dowda dated 12 October 2016). She found some relief with her chiropractor, and later saw her general practitioner. She has preferred conservative rather than invasive treatments to date. Following her application to the respondent, she was referred by it to Dr Dowda, a Consultant Occupational Physician. Dr Dowda took from a summary of medical literature reviewed by the American Medical Association that there was insufficient evidence to support keyboard activities alone as being the precipitant of carpal tunnel syndrome. He remarked that notwithstanding that fact, “evolving carpal tunnel syndrome could have been aggravated by excessive typing”. He later said that “if not purely causative then the physical activity of repetitive keying may well have aggravated any evolving carpal tunnel syndrome”. Among the questions asked by Comcare was the following:“Is it probable that Ms Trisna-Halim’s claimed condition is attributable to factors other than her employment with the Department Defence (sic)? In particular, please comment on the probable contribution of: (a)Other psychological or social factors;(b)Other employment or lifestyle activities.

Decision

Reasons for decision

I draw no reliable assistance from the literature before me on the question of whether repetitive keyboard and mouse use does or may aggravate carpal tunnel syndrome. If the issue were whether repetitive keyboard and mouse use may bring about the onset of carpal tunnel syndrome, then Dr Breit would obtain support, but by no means unanimous support, from the literature. On the more different question of aggravation, the literature does not provide much assistance. On the whole, I conclude that Dr Dowda’s assumption that the literature says little about aggravation is a justified view on the literature to which I have referred. CONCLUSION The result is that I am left with the evidence of the applicant and of the two medical practitioners, especially Dr Dowda, both of whom support the view which her own evidence supports (both the evidence set out in Dr Dowda’s report, and the evidence given before me to which I have referred in paragraphs 14 and 15 above), that her condition of carpal tunnel syndrome was aggravated by her employment, and to a significant degree. That evidence satisfied me that her condition is aggravated by her keyboard and mouse use at work, and that the work has aggravated her carpal tunnel syndrome condition to a significant degree. Following from the above, the decision under review is set aside and substituted with a decision that the respondent is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of bilateral carpal tunnel syndrome. The respondent has asked to be heard on any costs orders to be made and I direct that written submissions on costs be filed and served by the respondent within 14 days of the date of these reasons, and that the applicant file and serve responsive submissions on costs within 14 days thereafter. My intention is to deal with costs on the papers, unless submissions cause me to take a different course.

Ratio Decidendi

Legal Principle Established

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