Van de Waterbeemd and Comcare (Compensation) - [2019] AATA 118

Van de Waterbeemd and Comcare (Compensation) [2019] AATA 118 (11 February 2019)
Division:GENERAL DIVISION
File Number(s): 2016/4560; and 2017/6560
Re:Mudite Van de Waterbeemd
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:11 February 2019
Place:Canberra

The Reviewable Decisions are affirmed.

.......................................................................
Senior Member Linda Kirk
Catchwords
COMPENSATION – appropriate diagnosis of the Applicant’s condition – whether Applicant suffers from chronic pain syndrome or carpal tunnel syndrome – whether Applicant suffered from a ‘disease’ that was contributed to, in a material degree, by her employment – whether Applicant continues to suffer from the effects of the disease – whether gym membership ‘medical treatment’ under s 4 of the SRC Act – reviewable decisions affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 16, and 29
Cases
Comcare v Sahu-Khan [2007] FCA 15
Hennessey-Milne and Comcare [2018] AATA 4453
Re Cross and Comcare [2018] AATA 52
Wincott-Whyte and Comcare [2018] AATA 1631
REASONS FOR DECISION
Senior Member Linda Kirk
11 February 2019
INTRODUCTION

Mrs Mudite Van de Waterbeemd (‘the Applicant’) was born in 1948. She holds a Bachelor of Arts and a Diploma of Education and worked as a secondary teacher until her retirement in August 2005. Following her retirement, she continued working in casual teaching positions at least two days a week. In 2003, she was employed by the ACT Department of Education and Youth Affairs and working as a teacher at Melrose High School.
Before 2003 the Applicant was in good health and was not taking any medication. She had no prior problems with pain in her hands or arms.[1] She enjoyed a number of activities including ballroom dancing, walking, golf and swimming. She made porcelain dolls that she described as being of international quality.[2]
[1] T28, 67 Report of Associate Professor Barnsley dated 18 August 2010, ‘Medical Background’.
[2] T28, 67 Report of Associate Professor Barnsley dated 18 August 2010, ‘History: Education/Occupation/Work Duties’. See also Exhibit A4, Question 1.
On 3 December 2003, the Applicant submitted a workers’ compensation claim for ‘overuse syndrome tendonitis’ with an onset date of 19 November 2003.[3] She wrote her condition was caused by ‘keyboard work – poor desk arrangement – desk wrong height’ and ‘heavy carrying/moving – equipment – books – furniture’.[4]
[3] T4, 13 Claim for Workers’ Compensation, Question 8.
[4] T4, 15 Claim for Workers’ Compensation, Questions 20-22.
Comcare, (‘the Respondent’) accepted liability to pay compensation to the Applicant for ‘synovitis and tenosynovitis (bilateral)’ on 7 January 2004 with a deemed date of injury of 19 November 2003.[5]
[5] T5, 24.
Application 2016/4560
The decision under review in application 2016/4560 is the Reviewable Decision dated 3 August 2016,[6] which affirmed a decision dated 7 June 2016 to deny liability for a gym membership under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’), in respect of a ‘chronic pain syndrome (bilateral)’, deemed to have been sustained on 19 November 2003 (‘the…

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.

Continue reading Van de Waterbeemd and Comcare (Compensation)

Details

AGLC: Van de Waterbeemd and Comcare (Compensation) [2019] AATA 118
Case: [2019] AATA 118
Decision Date: 11 February 2019

CaseChat Overview and Summary

This matter concerned an application before the Administrative Appeals Tribunal, brought by the Applicant, Ms. Van de Waterbeemd, against Comcare. The central dispute revolved around the appropriate diagnosis of the Applicant's medical condition, whether it constituted a "disease" contributed to by her employment, and whether a gym membership constituted "medical treatment" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The Applicant contended she suffered from Complex Regional Pain Syndrome Type 1 (CRPS1), which had developed from an initial diagnosis of synovitis and tenosynovitis. Comcare, relying on the opinion of Professor Youssef, argued that the Applicant suffered from Carpal Tunnel Syndrome (CTS) which was a constitutional disorder not materially contributed to by her employment.

The Tribunal was required to determine the correct diagnosis of the Applicant's condition, considering the conflicting medical evidence presented. Specifically, it needed to ascertain whether the Applicant's symptoms, which commenced in late 2003, were indicative of CRPS1 as argued by the Applicant, or CTS as maintained by Comcare. Furthermore, the Tribunal had to assess whether the Applicant's employment had materially contributed to her condition, and whether a gym membership could be considered "medical treatment" under section 4 of the SRC Act.

The Tribunal found that the medical evidence did not support a diagnosis of CRPS1. Instead, it concluded, based on the comprehensive review of the Applicant's medical history and the expert opinion of Professor Youssef, that the Applicant had suffered, and continued to suffer, from Carpal Tunnel Syndrome since 2003. The Tribunal noted that symptoms such as hand weakness, difficulty writing, and dropping objects were consistent with CTS, and that nerve conduction studies conducted in 2006 confirmed bilateral CTS of moderate severity. Regarding the contribution of employment, the Tribunal accepted Professor Youssef's opinion that CTS is a constitutional disorder and was not caused by the Applicant's employment, also considering factors such as obesity and psychological elements as contributing to the condition. Finally, the Tribunal determined that a gym membership did not meet the definition of "medical treatment" as defined in section 4 of the SRC Act.

Consequently, the Tribunal affirmed the reviewable decisions. The Applicant's claim for a gym membership as medical treatment was denied, and the finding that her condition was not materially contributed to by her employment was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues for determination in Application 2016/4560 are:(a)Is a gym membership ‘medical treatment’ under s 4 of the SRC Act? (b)Is a gym membership reasonable for the Applicant to obtain in the circumstances? (c)Is the gym membership obtained in relation to the compensable injury? EVIDENCE BEFORE THE TRIBUNALClaimed Condition At the date of the onset of the Claimed Condition the Applicant was engaged in face to face teaching of students for 18 hours per week at Melrose High School.[13] The balance of her full-time work duties was administration, including four to six hours a day sitting at her desk working on the computer.[14] Her desk had a set of drawers underneath on the right-hand side and the computer was attached to the wall by a short CAT5 cable so that the computer was positioned over the top of the drawers of the desk.[15] She therefore had to swivel to her right and type to the right-hand side of the desk. She was not provided with a swivel chair and sat on a plastic school seat.[16] The Applicant’s requests to be provided with an extra length of CAT5 cable and ergonomic seating were not accepted by the School Administrator.[17] She worked in this position for a period of 18 months before the onset of her symptoms.[18] [13] T28, 67 Report of Associate Professor Barnsley dated 18 August 2010, ‘History: Education/Occupation/Work Duties’.[14] T28, 67 Report of Associate Professor Barnsley dated 18 August 2010, ‘History: Education/Occupation/Work Duties’.[15] Exhibit A4, Question 8a.[16] T28, 67 Report of Associate Professor Barnsley dated 18 August 2010, ‘History: Education/Occupation/Work Duties’.[17] Exhibit A4, Question 8a.[18] T28, 67 Report of Associate Professor Barnsley dated 18 August 2010, ‘History: Education/Occupation/Work Duties’; Exhibit A4, Question 5. The Applicant described the onset of the development of her condition as follows:[T]he poor ergonomics were in place for 18 months so the condition has its genesis in that 18 month time frame. The condition and pain started to become apparent in the 6 months prior to the 19/11/2003. Board work became difficult, carrying heavy class sets of books became painful. Note the condition developed over time – it was not as say, a broken leg, not there 1 day but there the next. This was a progression, a development over time. I had seldom been to a doctor. No one goes to the doctor at first symptoms but will when there is a significant event.[19][19] Exhibit A4, Question 5. From mid-2003 the Applicant experienced gradual onset of a weakness in the right hand with pain in the forearm. She experienced difficulty using her hands and forearms, and initially noticed difficulty writing on the whiteboard.[20] She also noted weakness and clumsiness, tending to drop things such as coffee cups[21] and the marker.[22] The weakness and clumsiness was associated with pain in her right forearm at the point of her elbow and gradually became progressively worse.[23] The pain spread proximally up to the neck and she had similar but less severe pain on the left-hand side.[24][20] T59, 245 Report of Professor Youssef dated 31 January 2017, ‘History of Current Claim’.[21] T16, 43 Report of Dr William Coyle, dated 25 September 2005 ‘Mechanism of Alleged Injury/Sequence of Events’.[22] T59, 245 Report of Professor Youssef dated 31 January 2017, ‘History of Current Claim’.[23] T16, 43 Report of Dr William Coyle dated 25 September 2005, ‘Mechanism of Alleged Injury/Sequence of Events’.[24] T16, 43-44 Report of Dr William Coyle dated 25 September 2005, ‘Current Status’.

Decision

Reasons for decision

Domestic and gardening assistance is required to assist the Applicant with the heavier and repetitive parts of household cleaning and gardening. These services will ensure that there is no further aggravation of her compensable injury and chronic pain condition.[131][131] Exhibit A1, para 5.17Decisions sought The Applicant seeks a decision that the Reviewable Decisions be set aside.RespondentApplicant’s condition Professor Youssef’s opinion should be accepted that the Applicant suffered carpal tunnel syndrome in 2003 and continues to suffer from this condition.[132] Carpal tunnel syndrome was also diagnosed by Dr Don Reed,[133] Dr Eaton,[134] and Dr Andrews.[135][132] Exhibit R1, paras 4.3-4.6[133] T47, 185.[134] T67, 325.[135] T55. The Applicant’s condition has attracted many diagnoses. Professor Youssef is the first doctor to review and summarise the breadth of the Applicant’s medical history, and to explain the differential diagnoses. His opinion should be preferred.[136] [136] Exhibit R1, paras 4.4. The Applicant did not have synovitis or tenosynovitis in 2003. This would not be caused by keyboarding and would have resolved within 2-12 weeks after the Applicant reduced her workload.[137] [137] Exhibit R1, paras 4.5. The Applicant may suffer from ongoing pain from her carpal tunnel syndrome, but she does not have a chronic pain condition.[138][138] Exhibit R1, paras 4.6; T59, 264.Contribution of employment to condition The opinion of Professor Youssef should be preferred. Carpal tunnel is a constitutional disorder and was not caused by the Applicant’s employment.[139] [139] Exhibit R1, paras 4.7. The Applicant claimed compensation on 3 December 2003 and the Tribunal is required to determine whether employment contributed, to a material degree, to her condition.[140] [140] Exhibit R1, para 4.8. Employment did not contribute in a manner that is substantial or considerable: Comcare v Sahu-Khan [2007] FCA 15 at [16]. The evaluative threshold of material contribution requires ‘evaluation of all relevant contributing factors.’ The following relevant contributing factors, unrelated to employment, preclude material contribution from employment:[141]·Carpal tunnel syndrome is a constitutional disorder, it is not caused by keyboarding or other work tasks;·Obesity is a contributing factor to carpal tunnel syndrome and the Applicant is obese;·Drs Marinos and Eaton found that psychological factors were impacting and perpetuating the Applicant’s condition;·The Applicant’s symptoms did not resolve after reducing her workload, thereby supporting the conclusion that the symptoms were not attributable to work tasks. [141] Exhibit R1, para 4.9. If the Applicant did suffer from ‘synovitis and tenosynovitis (bilateral)’ on 19 November 2003, which is not admitted, Professor Youssef’s opinion should be accepted that this condition would have resolved after 2 to 12 weeks.[142] [142] Exhibit R1, paras 4.10Gym membership A gym membership does not meet the definition of ‘medical treatment’ in s 4 of the SRC Act.[143] [143] Exhibit R1, paras 4.11.

Ratio Decidendi

Legal Principle Established

The Respondent seeks a decision that the Reviewable Decisions are affirmed. CONSIDERATION AND FINDINGSWhat is the appropriate diagnosis of the Applicant’s condition? The parties disagree as to the appropriate diagnosis of the Applicant’s condition. The Applicant argues that, whereas she was appropriately diagnosed initially with synovitis and tenosynovitis / occupational overuse injury, her condition has progressed over time and developed into complex regional pain syndrome type 1 (CRPS1). She relies on the diagnosis made of CRPS1 by Associate Professor Barnsley in August 2010, which was subsequently adopted by Drs Eaton and Reed for the purposes of completing medical certificates for workers compensation between 2010 and 2016. She rejects the finding of Professor Youssef in his January 2017 report, which he confirmed in his oral evidence and upon which the Respondent relies, that she suffered from carpal tunnel syndrome (CTS) in 2003 and continues to suffer from this condition. She concedes she has elements of CTS, but says this is only a component in the development of the CRPS1 from which she suffers. The Applicant did not provide to the Tribunal any updated medical reports nor did she call any of her own medical witnesses to give supporting evidence of a CRPS1 diagnosis and/or to contradict the CTS diagnosis of Professor Youssef. The Tribunal has reviewed all the medical evidence before it and attributed to it appropriate weight having regard to the qualifications and expertise of the practitioners, and the information they had available to them at the time they made their diagnoses. For the reasons that follow, the Tribunal is not satisfied that the evidence supports a finding that CRPS1 is the appropriate diagnosis of the Applicant’s condition at any time from November 2003 to the present date. The Tribunal finds, for the reasons detailed in the following paragraphs, that the medical evidence supports a finding that since 2003 the Applicant has suffered, and continues to suffer, from carpal tunnel syndrome (CTS). The Tribunal relies on the evidence of Professor Youssef that the symptoms which the Applicant first reported to her general practitioner, Dr Marinos in November 2003 and Dr Eaton in January 2004, namely her hands ‘freezing’ on the keyboard, being unable to write, difficulty writing on the whiteboard, clumsiness and dropping things such as a coffee cup and the marker, and a loss of grip strength on the steering wheel, are ones that indicated CTS. According to Professor Youssef, had Tinel’s and Phalen’s tests been conducted, CTS could have been diagnosed and this diagnosis could have been confirmed by nerve conduction studies. However these tests were not administered by the Applicant’s treating doctors, and it was not until August 2006, more than two and a half years after the lodgement of the compensation claim, that nerve conductions studies were completed by Dr Andrews which showed ‘bilateral carpal tunnel syndrome of moderate severity greater on the right than the left’.[147][147] T55.