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:

1. 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.

2. 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

1. 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.

2. 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, there being ample and unanimous medical evidence to that effect.  Ms Trisna-Halim has troubled sleep as a result of pain, pins and needles and stiffness caused by the bilateral carpal tunnel condition.  She experiences such symptoms during her working day, although not continuously. The application is made in respect of incapacity and medical treatment, and because of concern on the applicant’s part that her condition may be aggravated or further aggravated in the future with consequences for her ability to continue in her employment and also with consequences for her lifestyle.

   LEGISLATIVE FRAMEWORK

3. The issue which this review is to resolve is whether the applicant’s condition is a “disease” as defined in s 5B of the Act and in particular, within the meaning of that section, whether it is an ailment or an aggravation of an ailment which was contributed to, to a significant degree, by her employment by the Commonwealth. The word “aggravation” is defined to include acceleration[1] or recurrence, unless the contrary intention appears: s 4(1) of the Act.

   [1] Cf the discussion of “aggravation, acceleration, exacerbation or deterioration” in the judgment of Windeyer J in Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626, 641.

4. 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

5. 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.

6. 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.

7. 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”.

8. 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.

9. Dr Dowda responded as follows:

   I do not consider it is probable that it is attributable to factors other than her employment with the Department of Defence, as I have not isolated any other factors that could be considered to be related to onset of carpal tunnel syndrome.

   Force is not an issue when keying, in terms of a combination of risk factors of force and repetition and force and posture, although there is strong evidence that a combination of force and posture with physical activities, involving manual repetitive activities can contribute to the onset of carpal tunnel syndrome. Vibration is not a consideration in her case.

   Highly repetitive work alone does provide conflicting and insufficient evidence. The highly repetitive work of keying is what is being considered here. Medical literature contains conflicting information regarding whether high repetition alone is a risk factor for carpal tunnel syndrome. There is nothing to suggest that she has other factors like a cold environment, job satisfaction, age or comorbidity, such as diabetes or activities, such as smoking or alcohol use that can be implicated in causation of carpal tunnel syndrome.

   Thus, I do not consider that it is probable that Ms Trisna-Halim's claimed condition is attributable to factors other than her employment with the Department of Defence. In particular, I have not identified (within the limits of my specialty) psychological or social factors or other employment or lifestyle activities that are likely to have precipitated the symptoms and the condition as described.

10. In answer to a question whether in his opinion the applicant’s current medical condition is an aggravation, acceleration or recurrence of a pre-existing or underlying condition, Dr Dowda replied: 

    I think, on the information that is provided, the onset of her bilateral carpal tunnel syndrome (right greater than left) may well have been constitutional and that might well have been accelerated or aggravated by the highly repetitive physical activities of keying. The nature of such aggravation would be a worsening of the diagnostic indicators (worsening of her diminished nerve conduction velocities) and worsening of her experience of the symptoms as described.

    I am unable to ascertain whether the symptoms as they presented in early 2016, were purely constitutional and would have been present in any event, but rather noting that she did have symptoms at that stage and that her work activities seem to exacerbate the symptoms that she was experiencing, then I would have to say that it is more likely than not that her medical condition is an aggravation of an underlying condition.

11. Dr Dowda’s expressions of opinion proceeds by rejecting other possible causes, noting the state of the literature as he understood it, relying upon the AMA Guides to the Evaluation of Disease and Injury Causation (‘the AMA Guides’), and nevertheless expressing a preference for the hypothesis that her employment aggravated a condition for which she had an underlying propensity. That kind of reasoning was submitted by the respondent to involve error, because it involved the rejection of alternative hypotheses, and the choice of an alternative that had not been rejected.

12. Such reasoning needs careful consideration in the light of authorities concerning causation, and in particular the decision of the House of Lords in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 Lloyds Rep 1; [1985] 1 WLR 948. A ship was lost at sea and it was for the shipowners to prove against the insurers that the ship was lost by perils of the sea. The trial judge, after eliminating other possible causes of the loss, and finding that there was insufficient support for the alternative suggested by the insurers, found that the proximate cause of the loss was collision with a submarine travelling in the same direction as the ship and at about the same speed. There was no record or other evidence that a submarine was in the vicinity. That is, the judge treated the case as an either/or scenario, rather than as a case where he might be unsatisfied with the explanations advanced by both parties, in which case the shipowner, having the onus of proof, would fail. Lord Brandon, with whose speech all members of the House of Lords agreed said:

    My Lords, the late Sir Arthur Conan Doyle in his book “The Sign of Four” describes his hero, Mr. Sherlock Holmes, as saying to the latter’s friend, Dr. Watson: “how often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”  It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.

13. Lord Brandon observed that if a judge concludes that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense.

14. It would not, in my opinion, be a fair reading of Dr Dowda’s report to suggest that he fell into the error identified by Lord Brandon.  In the first place, his opinion is that the medical condition aggravated, in the sense of worsening, the diagnostic indicators of her condition (worsening of her diminished nerve conduction velocities) and worsened her experience of the symptoms as described.  He also expressed the view that her work activities seem to exacerbate the symptoms she was experiencing.  Those remarks mean in my opinion that he found sufficient in the history he was given, to treat the hypothesis he preferred as more probable than not. It was not simply a hypothesis advanced as a mere possibility not rejected out of hand.  I read his report as suggesting that the literature, as reported in the AMA Guides, did not provide support for the attribution of causation (in the sense of a precipitating cause) to the keyboard and mouse work but did not show that aggravation could not occur by reason of such work.  The literature is discussed in more detail below.

15. It happens that some evidence was elicited in the hearing before me which tends to support the history to which I take Dr Dowda to refer.  Ms Trisna-Halim had about ten days off work over the Christmas-New Year break in the December 2016/January 2017 period. She said that over that break from her occupation, her symptoms of pins and needles and pain lessened.

16. She also said that if she was at work and used the mouse a lot, the next day the stiffness and pins and needles would be worse.

17. The respondent suggested that Dr Dowda’s report should be given less weight on account of his specialty being that of occupational physician.  He was qualified by the respondent and stated in his report that his specialty was appropriate for the conduct of the assessment, and I see no reason to reject or give less weight to his report on that basis.

18. Dr Dowda was not called by either party to give oral evidence before me. 

19. That would have been useful, but his qualifications and the fact that his observations are more detailed than the other reports which are in evidence before me, coupled with  the objectivity demonstrated by his report, leads me to treat his report as valuable in this review.

20. Another medical practitioner, Dr Kwong, whom the applicant herself consulted, provided a report but also gave no oral evidence.  The applicant stated that she could not afford to arrange for his attendance.  Dr Kwong provided two reports, respectively dated 8 November 2016 and 18 July 2017. He is a Consultant Physician and Rheumatologist.  In his first report, after diagnosing her condition as carpal tunnel syndrome, he said:

    Her work involves repetitive use of both hands and both wrists, which is a major risk factor for carpal tunnel syndrome.  She does not have other risk factors such as overweight or thyroid disorder. In my opinion, she has occupational induced bilateral carpal tunnel syndrome.

21. In his second report he expressed agreement with Dr Dowda’s report and quoted what I have set out at paragraph 9 above. He concluded his report by stating the opinion that her employment with the Department of Defence is the main contributing factor of her bilateral carpal tunnel syndrome.  Because of the brevity of the conclusions expressed by Dr Kwong, I would have difficulty in acting on his report if it stood alone.  Dr Kwong did not specify whether he regarded intensive keyboard and mouse work as a “major risk factor” for the causation or aggravation of carpal tunnel syndrome.  Whether repetitive use of both hands and wrists is correctly described as a major risk factor for carpal tunnel syndrome (and if so, whether it is a risk factor for causation or for aggravation) is a matter for consideration in the light of the medical literature to which my attention has been drawn. 

22. On the other hand, Dr Kwong’s agreement with the report of Dr Dowda is another matter to be borne in mind in assessing Dr Dowda’s report.

23. The third medical report before me is that of Dr Robert Breit, called by the respondent, who gave evidence in this review by telephone. He is an Orthopaedic Surgeon.  In his report he was asked to comment on the known risk factors for carpal tunnel syndrome and replied:

    Carpal Tunnel Syndrome is mainly a constitutional problem. It is more common in women than in men.

    There are a number of associations such an inflammatory arthropathy (rheumatoid arthritis) and diabetes. It can occur as an acute phenomenon in pregnancy and due to compression from a hand injury. On the work front there are only two recognised associations, the first is people working in cold environments which in Australia mainly means cold store type employment. The other is the constant use of vibrating implements such as jackhammers.

24. He said in answer to a question concerning keyboard activities as a risk factor: “there is no evidence in the literature that keyboard activities do cause Carpal Tunnel Syndrome. If that were the case we would be faced with a deluge of cases which has not occurred”.  When asked about the relationship between the applicant’s condition and “other workplace events and/or any non-employment related factors” he said: “[t]his is entirely a constitutional phenomenon.” 

25. Dr Breit’s evidence (and in certain respects, evidence in the reports of Doctors Kwong and Dowda) will fall to be considered in the light of my review of the medical literature, a body of material which included two contributions emanating from Dr Breit, namely exhibits R3 and R4 to which I will return in these reasons. Dr Breit’s oral evidence, like his written report, depended heavily on the literature.  For the most part the oral evidence was given at a very general level, and if I may say so with respect, added little to his written report.  The literature placed in evidence will speak for itself.

26. The literature before me provides little guidance which may assist the determination of whether intense keyboard and mouse use may aggravate a carpal tunnel syndrome condition. That is no doubt because its assessment would be fact-specific, and patient-specific, and to arrive at any generalization about the question in any given population may be hampered by the absence of detailed medical and other records.

27. One study (exhibit A5) examined the extent to which long weekly hours of keyboard use may lead to or aggravate carpal tunnel syndrome. That was Effect of Wrist Posture on Carpal Tunnel Pressure while Typing, by David M. Rempel and others.[4] That paper discussed an experiment conducted using 20 healthy patients in their twenties and thirties who touch-typed the same material as each other, while pressure of fluid at the carpal tunnel was measured using a catheter located at the narrow region of the carpal tunnel at the level of the hook of the hamate.  The study examined a number of things.  One finding was about touch-typing itself, and the conclusion of the experimenters was that activity increases carpal tunnel pressure above the pressure associated with just holding hands suspended over the keyboard at the same wrist posture.  If that can be the case in a healthy typist without carpal tunnel syndrome, then it is at least possible that prolonged and repetitive typing activity done by a person with carpal tunnel syndrome could worsen that person’s condition.  In their abstract the authors suggested that “[l]ong weekly hours of keyboard use may lead to or aggravate carpal tunnel syndrome”.

    [4] Accessible from:

1. According to exhibit R12, a research article which examined eight other epidemiological studies entitled Carpal Tunnel Syndrome and the use of Computer Mouse and Keyboard: A systematic review, by Jane f. Thomsen and others, another article by Rempel was mentioned together with another study (not in evidence before the Tribunal) which suggested heightened carpal tunnel pressure during mouse use by 14 healthy subjects.

2. Aggravation was discussed in exhibit R7, an English study of 2003, where the observation was made that “[r]epetitive work, such as that involved in assembly work, pool typing and checkout counter work (high repetition, low force, good posture) did not accelerate the onset of this disorder or aggravate its severity”. As best I can judge, that remark relates to 55 women in repetitive occupations, of whom 15 were typists, compared to a population of 218 men, 383 women, from which total 56 were excluded because occupational information was inadequate.  The 15 typists were not compared alone but rather 55 persons including those 15 were compared.   The means by which the statements about aggravation were made is not evident to me.

3. Neither exhibit 3 nor exhibit 4 discusses aggravation.

4. 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

5. 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.

6. 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.

7. 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.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

...............................[sgd].........................................

Associate

Dated: 1 September 2017

Date(s) of hearing:	10 & 11 August 2017
Applicant:	In person
Solicitors for the Respondent:	Mr B Dean, Australian Government Solicitor