Van de Waterbeemd and Comcare (Compensation)
[2019] AATA 118
•11 February 2019
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 KirkCatchwords
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 Claimed Condition’).[7]
[6] T45.
[7] T43.
Application 2017/6560
The decision under review in 2017/6560 is the Reviewable Decision dated 15 September 2017[8] which:
·affirmed the determination dated 1 June 2017, which determined no present liability under Pt III in relation to the Claimed Condition;[9] and
·varied two determinations, both dated 1 June 2017,[10] and determined that compensation was not presently payable for medical treatment and household services, under ss 16 and 29 of the SRC Act in relation to the Claimed Condition.
[8] T48.2.
[9] T48.1.
[10] T63 and T64.
On 2 September 2016 and 26 October 2017 the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decisions.[11]
[11] T1.
The review applications were heard by the Tribunal at a hearing in Canberra on 18 and 19 October 2018. The following witnesses gave oral evidence at the hearing:
·the Applicant; and
·Professor Peter Youssef.
The following documents were before the Tribunal:
·Applicant's Statement of Issues, Facts and Contentions and Attachments dated 16 May 2018 – Exhibit A1;
·Applicant’s ‘Opening Submissions’ read to the Tribunal on 18 October 2018 – Exhibit A2;
·'Response to Associate Professor Youssef's report dated 31 January 2017' dated 26 April 2017 and Attachments 1-12; and 14 – Exhibit A3;
·Document titled, 'Friday' referred to by the Applicant upon Re-Examination on 19 October 2018 – Exhibit A4;
·Variously dated material marked by the title, 'Claim for reimbursement for Household Cleaning Services' mostly comprising of Tax Invoices and Statements – Exhibit A5;
·Document titled, 'Response to Comcare's Facts and Contentions' given to the Tribunal on 19 October 2018 – Exhibit A6;
·Respondent's Statement of Issues, Facts and Contentions dated 1 March 2018 – Exhibit R1; and
·Respondent’s s 37 documents (T1-T69) filed 11 December 2017 – Exhibit R2.
LEGISLATIVE FRAMEWORK
Sections 14, 16, 29 of the SRC Act provide for the payment by Comcare (‘the Respondent’) of compensation as follows:
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.
…
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.
…
29Compensation for household services and attendant care services obtained as a result of a non-catastrophic injury
(1) Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires, Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200
…
Statutory Definitions
‘Injury’ is defined in s 5A of the SRC Act:
(1)…
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
…
At the time of the claim, s 4(1) of the SRC Act defined ‘disease’ to mean any ailment or aggravation of any ailment suffered by an employee ‘that was contributed to in a material degree by the employee’s employment by the Commonwealth’.[12]
[12] The necessary contribution by employment is to a material degree, pursuant to s 4(1) of the Act as it stood before the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
The following relevant definitions appear in s 4(1) of the SRC Act:
‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘medical treatment’ means:
(a)…
(b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner…
(c)…
(d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be…
…
ISSUES FOR DETERMINATION
The issues for determination in Application 2017/6650 are:
(a)What is the appropriate diagnosis of the Applicant’s condition?
(b)Did the Applicant suffer a ‘disease’ that was contributed to, in a material degree, by her employment?
(c)If so, does the Applicant still continue to suffer from the effects of the disease?
(d)If the Applicant does not continue to suffer from the effects of the injury or disease, when did the disease resolve?
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 TRIBUNAL
Claimed 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’.
In her evidence to the Tribunal, the Applicant accepted as accurate the following description of the first signs of her condition and its impact as documented by Kathy Conroy at the Canberra Injury Management Centre on 20 January 2004:
In May 2003, [the Applicant] reports noticing weakness in both her hands right worse than left with two lines of pain running up her forearms. She was doing more keyboard work than usual. She kept working despite the pain and felt better after the June school holidays. The pain returned and eventually she sought medical advice from her doctor who put her off work for twelve months. The pain has spread up her arms to her neck.[25]
[25] T8, 32.
Two incidents occurred on 19 November 2003 related to the Applicant’s symptoms. At the beginning of the school day when she logged onto her computer in the morning to check emails her ‘hand froze’ and she experienced ‘pain’ and was ‘unable to write’.[26] Later that day in the afternoon when she had left school and was driving home she lost grip of the steering wheel and ran off the road which resulted in a warning from police.[27] An Accident/Incident report dated 8 December 2003 completed by the Applicant described the injury as ‘Swollen tendons, Damaged nerves’.[28] Following these incidents she went to see her general practitioner, Dr Tony Marinos.[29]
Medical treatment for Claimed Condition
[26] T3, Accident/Incident Report dated 8 December 2003.
[27] T16, 43 Report of Dr William Coyle dated 25 September 2005, ‘Mechanism of Alleged Injury/Sequence of Events’.
[28] T3.
[29] Exhibit A4, Question 6.
Dr Tony Marinos, General Practitioner
Dr Marinos diagnosed the Applicant with ‘regional pain syndrome’[30] and referred her to Dr Garth Eaton, Occupational Physician. In a letter to Dr Eaton dated 19 November 2003, Dr Marinos wrote that the Applicant was experiencing intermittent pain and tenderness in her forearm.[31]
[30] T47, 157-159.
[31] T50.1, 206.
Dr Marinos wrote to Dr Eaton again on 13 January 2004, noting an increase in the Applicant’s right hand symptoms, colour change, paraesthesia and an increase in forearm pain when gripping. He noted that the Applicant ‘seems to now fit the pattern of reflex sympathetic dystrophy’.[32]
[32] T50.1, 205
Dr Garth Eaton, Occupational Physician
In a letter to Dr Marinos dated 17 January 2004, Dr Eaton wrote that the Applicant:
… appears to have developed quite a severe occupational overuse injury/regional pain disorder which appears to have commenced with tenosynovitis of the right forearm and musculo-ligamentous strain of the neck and shoulder regions.
She has also had symptoms in the left arm also. There may be some underlying problems in her neck and I have order (sic) the CT scan of the cervical spines hopefully to exclude significant neck pathology.
…
There is evidence of allodynia in the neck and shoulders and right arm.
…
I will monitor her closely for complex regional pain syndrome type 1 (reflex sympathetic dystrophy) as she has complained of swelling of the right-hand etc.[33]
[33] T51, 207.
A CT scan of the Applicant’s cervical spine on 22 January 2004 showed multilevel cervical spondylosis involving the C6/7, 5/6, 4/5 with foraminal narrowing on the right at all levels.[34]
[34] T7.
Dr Eaton provided a report to the Respondent dated 22 May 2004. He wrote that ‘both physically and psychologically she appears to have improved’ but noted the Applicant had ‘a number of concerns and can see various potential difficulties and barriers to a successful return to work’.[35]
[35] T11, 35.
Dr Eaton’s management of the Applicant included physiotherapy, a gymnasium programme and an exercise programme, as well as advice about changes in the use of her hands, arranging for domestic assistance at home, and also arranging for her standard computer to be replaced by a voice-activated computer.
In a letter to the Respondent dated 21 November 2004, Dr Eaton described the Applicant’s condition as ‘tendonitis/occupational overuse syndrome involving both upper limbs’. He noted that she ‘seemed to do very well with the program at the Canberra Injury Management Centre however repetitive duties involving the upper limbs including handwriting aggravated her condition resulting in increased pain and swelling.’ He reported that the Applicant was ‘delighted’ with her ability to work full-time using the voice-activated software that had been provided to her, that she had been certified as fit to work full-time as at 16 November 2004, and her ‘future work capacity looks much more promising’.[36]
[36] T14.
On 14 December 2004, Dr Eaton wrote to the Respondent reporting that the Applicant had ‘progressed well but continues to experience bilateral forearm and hand pain, tenderness and swelling’ which ‘appears to be aggravated by the heavier cleaning chores at home.’ He recommended the Applicant be provided with household help for heavy and strenuous domestic duties.[37]
[37] T15.
Comcare Medicate Certificates for Workers Compensation 2003-2016
The Applicant’s condition for the purposes of Comcare Medical Certificates for Workers Compensation was diagnosed by her treating practitioners on the following dates as follows:
Dr Marinos[38]
[38] T47, 157-159.
19 November 2003 – ‘Regional pain syndrome’
1 December 2003 – ‘Regional pain syndrome’
13 January 2004 – ‘Regional pain syndrome’
Dr Eaton[39]
[39] T47, 160- 168.
14 January 2004
Occupational overuse injury (OOS), Regional pain syndrome, Tenosynovitis of the (R) forearm, musculo-ligamentous strain of the neck, tenosynovitis and synovitis (L)
17 February 2004
‘Tendonitis, OOS Upper limbs’
31 March 2004
‘OOS, musculo-ligamentous strain, Tenosynovitis (diagnosis)’
1 May 2004
‘Tendonitis, OOS Upper limbs’
15 June 2004
‘Tendonitis, OOS Upper limbs’
22 February 2005
‘Tendonitis, OOS Upper limbs’
17 March 2005
‘Tendonitis, OOS Upper limbs’
16 June 2005
‘Tendonitis, OOS Upper limbs’
22 June 2006
‘Tendonitis, OOS Upper limbs’
Dr Allan[40]
[40] T47, 169
10 January 2006
Tendonitis, OOS Upper limbs
Dr Eaton[41]
[41] T47, 171-183.
11 December 2006
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
Examination: Tinel’s +ve. Otherwise NAD24 July 2007
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
Some right arm Pain ++7 December 2007
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
Examination: Tinel’s Test +ve25 June 2008
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
26 November 2008
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
Extensor muscles, Left forearm, Rarely pins and Needles, Right Hand swells12 June 2009
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
2 December 2009
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome (diagnosis)’
Some swelling. Extensor tendonitis15 December 2010
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome, regional pain syndrome (diagnosis)’
10 June 2011
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome, regional pain syndrome (diagnosis)’
14 May 2012
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome, regional pain syndrome (diagnosis)’
5 June 2013
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome, regional pain syndrome (diagnosis)’
26 May 2014
‘Tendonitis, OOS Upper limbs, Bilateral Carpal Tunnel Syndrome, regional pain syndrome (diagnosis)’
Dr Don Reed[42]
24 July 2015
‘Regional pain syndrome, Tendonitis, Bilateral carpal tunnel syndrome’
24 May 2016
‘Regional pain syndrome, Tendonitis, Bilateral carpal tunnel syndrome’
[42] T47, 184-185.
Applicant’s Supervised Gym Program
Mr Patrick Avery, the Applicant’s personal trainer, provided a statement in response to a summons on 12 December 2016.[43] He wrote that the gym program undertaken by the Applicant included ‘Using Thera bands, free weights, cable machines or own body weight’.[44]
[43] T56.
[44] T56.1, 215.
The Applicant described the benefits of the gym program as follows:
My gym program is a prescribed and supervised program. It is fully cognisant of my condition and is designed to work with my injuries. It is not a strenuous program and ensures that I do not further aggravate my injury. The exercise program allows me to:
1reduce pain;
2understand and live with my condition;
3improve sleep;
4manage fear/anxiety/anger through knowledge;
5work as a relief school teacher;
6have a social life, play and interact with grandchildren; and
7avoid drug dependence.[45]
Expert Medical Evidence
[45] See Exhibit A4, Question 12.
Dr William Coyle, Orthopaedic Surgeon – 25 September 2005
Dr William Coyle saw the Applicant on 25 September 2005 and provided a report to the Respondent.[46]
[46] T16 Report of Dr William Coyle dated 25 September 2005.
He noted that:
[The Applicant] complained of pain, weakness and clumsiness in both hands, her right more than her left, her fine motor control was impaired which makes writing especially difficult and her hands were weak, which makes using keys difficult.
She also complained of pain in the dorsal aspect of her forearms and points of her elbows and a ‘flickering feeling’ in her right forearm.
Following activity her hands are swollen and discoloured, these episodes occurring quite suddenly and resolving equally as suddenly. Her hand symptoms are triggered, especially by vibration such as using a hairdryer or electric toothbrush or using the steering wheel of her car.[47]
[47] T16, 43 Report of Dr William Coyle dated 25 September 2005, ‘Current Status.
Dr Coyle diagnosed ‘chronic pain syndrome which has weakened her hands and which developed over the years, but was not reported until November 2002 (sic)’. He described her condition as ‘almost certainly an overuse phenomenon from strenuous, prolonged work with computers and extra positions of responsibility as a school teacher for many years.’ In his opinion, ‘the effects of the condition are permanent’ and the condition was ‘not an aggravation or acceleration of an underlying condition.’ He considered that the Applicant’s employment was ‘a major contributing cause in the development of her arm condition’.[48]
[48] T16, 45 Report of Dr William Coyle dated 25 September 2005, ‘Summary and Assessment’.
An MRI of the cervical spine of 4 August 2006 showed a C5/6 left focal disc protrusion impinging on the orifice of C5/6 left lateral focal disc.[49]
[49] T18.
Dr Colin Andrews, Neurologist – 31 August 2006
Dr Colin Andrews, Neurologist, reported nerve conduction studies of the Applicant on 31 August 2006 as ‘bilateral carpal tunnel syndrome of moderate severity, greater on the right than the left and normal conduction in her ulnar nerves’.[50]
[50] T55.
Associate Professor Les Barnsley, Rheumatologist – 18 August 2010
Associate Professor Les Barnsley saw the Applicant on 11 August 2010 and provided a report to the Respondent dated 18 August 2010.[51] The report noted the Applicant’s current symptoms including that ‘she underwent nerve condition studies that showed mild carpal tunnel syndrome’.[52] Dr Andrew’s report of the nerve conduction studies was not provided to Associate Professor Barnsley and therefore he was ‘unable to confirm this’.[53] He noted the report of Dr Coyle dated 20 September 2005 and the report of the cervical CT scan dated 22 January 2004.
[51] T28 Report of Associate Professor Les Barnsley.
[52] T28, 68 Report of Associate Professor Les Barnsley, ‘Investigations’,
[53] T28, 69 Report of Associate Professor Les Barnsley, ‘Investigations’.
Associate Professor Barnsley reported in relation to the Applicant:
… I do not believe her current diagnosis is that of synovitis and tenosynovitis. I consider that she has a regional pain syndrome on both sides and on the right side particularly there are features suggestive of some persistent complex regional pain syndrome with swelling, erythema, altered sweating and allodynia. The prognosis for this latter condition is very poor, particularly given the duration of symptoms. It would seem that this condition developed in 2003. It is often preceded by other painful problems such as synovitis or tenosynovitis.[54]
[54] T28, 69 Report of Associate Professor Les Barnsley, ‘Summary and Assessment’.
Associate Professor Barnsley provided the following opinion about whether the Applicant’s current condition remained attributable to her employment duties:
I believe that the most probable explanation is that she did have a problem such as tenosynovitis, synovitis or even carpal tunnel syndrome back in 2003 and that this has precipitated the development of her chronic pain problems specifically CRPS I, more so on the right than the left arm.[55]
[55] T28, 70 Report of Associate Professor Les Barnsley, ‘Summary and Assessment’.
In relation to the suitability of the Applicant’s gym program, Associate Professor Barnsley wrote:
… taking her comments on face value it appears that the gym program does help her manage her pain. It is also clear that there are a number of components of the gym program that are not directed towards her current problem, specifically the lower limb and aerobic activities.
…
… it is clear that she does feel better for attending the gym but this very much in a general way rather than specifically to do with the pain problem.[56]
[56] T28, 71 Report of Associate Professor Les Barnsley, ‘Additional Questions’.
Associate Professor Barnsley provided a supplementary report on 25 January 2011.[57] He reported that the Applicant’s ‘gym programme is aimed is aimed at improving function and, hopefully, improving pain caused by the Applicant’s injury’.[58] He noted that it was clear that the Applicant found the program helpful and in his view there ‘there is some benefit … in terms of improving anxiety and depression as a result of the gym program’.[59]
[57] T35 Supplementary Report of Associate Professor Les Barnsley.
[58] T35, 92.
[59] T35, 92.
In a letter to the Respondent dated 27 November 2010, Dr Eaton stated that he broadly concurred with Associate Professor Barnsley’s report dated 11 August 2010 and ‘would agree that there are definite elements of regional pain syndrome/complex regional pain syndrome Type 1 involving the upper limbs.’[60]
Professor Peter Youssef, Rheumatologist
[60] T31, 78.
Report dated 31 January 2017
Professor Peter Youssef examined the Applicant on 31 January 2017 and provided a report to the Respondent of the same date. He reviewed the file materials, including relevant investigations, medical certificates and reports written by Dr Marinos, Dr Eaton, Dr Andrews, Dr Coyle, and Associate Professor Barnsley. He provided the following opinion:
[The Applicant]… currently has evidence of bilateral carpal tunnel syndrome worse on the right than the left. It is also likely that she had the same diagnosis in 2002 and 2003.[61]
[61] T59, 262 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
In support of this diagnosis, Professor Youssef noted:
·The incident report dated 8 December 2003 made reference to ‘damaged nerves’ indicating that the Applicant’s treating practitioners must have had concerns that there was an underlying neurological condition;[62]
·In May 2003 the Applicant reported ‘weakness in both her hands, the right worse than the left with two lines of pain running up the forearms’[63];
·Nerve conduction studies of Dr Colin Andrews (neurologist) showed carpal tunnel syndrome of ‘moderate severity’ on 31 August 2006;[64]
·Associate Professor Barnsley reported that she was ‘troubled by weakness in the hands … was dropping items … and was experiencing difficulty with dexterity and fine motor skills’ which are ‘symptoms very typical of carpal tunnel syndrome.[65]
[62] T59, 262 referring to T3 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[63] T59, 262 referring to T8 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[64] T59, 262-263 referring to T55 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[65] T59, 263 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
Professor Youssef noted the numerous differential diagnoses of the Applicant’s condition and made the following observations:
· The Applicant did not have ‘occupational overuse syndrome’ as ‘one would have expected her symptoms to have improved within 2 to 12 weeks of reducing her workload if overuse at work was the problem’[66]
· The Applicant did not have cervical radicular pain because ‘an MRI of the cervical spine performed on 14 August 2006 did not show right-sided foraminal narrowing even though her symptoms were mainly on the right’[67]
· The Applicant did not have tenosynovitis as it was ‘unlikely that typing would cause significant tenosynovitis at the elbows’ and if this were the cause of her condition ‘one would have expected her symptoms to have improved significantly within 2 to 12 weeks of reducing her workload.’ Both he and Associate Professor Barnsley found no clinical evidence of this condition.[68]
[66] T59, 263 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[67] T59, 263 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[68] T59, 263 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
Professor Youssef concluded:
Therefore, [the Applicant] has bilateral chronic pain but rather than being given the label of ‘chronic pain syndrome (bilateral), she should have been given the diagnosis of bilateral carpal tunnel syndrome.[69]
[69] T59, 264 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’
Professor Youssef wrote that carpal tunnel syndrome is a ‘constitutional disorder with obesity being a contributing factor’.[70] The Applicant’s BMI was ‘in the obese range’.[71] Carpal tunnel syndrome ‘is not caused by typing and was highly unlikely to have been due to her work.’[72] He attached to his report three studies that ‘conclude that using a computer and keyboarding do not increase the risk of carpal tunnel syndrome.’[73] One of the attached studies ‘concluded that intensive keyboard work was associated with a reduced risk of carpal tunnel syndrome.’[74]
[70] T59, 264 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[71] T59, 264 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[72] T59, 264 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[73] T59, 264 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[74] T59, 264 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’; see further T59, 269-291.
In relation to the Applicant’s gym program, Professor Youssef stated, ‘[a] gym program is not a recognised treatment for carpal tunnel syndrome.’[75] While the Applicant reported that the gym ‘helps the pain enormously’, in his opinion ‘these are general health benefits and do not treat the underlying condition.’[76] He ‘would expect that [the Applicant] would be able to do her own gym program without supervision after having been supervised for several years.’[77] In his view, ‘the gym program is not treating her main condition of carpal tunnel syndrome.’[78]
[75] T59, 266 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[76] T59, 266 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
[77] T59, 267 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’. See also Transcript of Proceedings dated Friday, 19 October 2018 (‘Transcript’), page 29, lines 11-17.
[78] T59, 267 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
In relation to the Applicant’s ability to perform household tasks, Professor Youssef noted that ‘[t]he symptoms of bilateral carpal tunnel syndrome may cause some discomfort while performing these tasks’, but her exercise regime suggested that ‘she should be capable of performing household tasks.’[79]
[79] T59, 267 Report of Professor Peter Youssef dated 31 January 2017, ‘Summary and Assessment’.
Oral evidence at hearing
Diagnosis and Treatment of Carpal Tunnel Syndrome
In his oral evidence to the Tribunal at the hearing, Professor Youssef was asked how he diagnoses carpal tunnel syndrome (CTS) in a patient. He replied:
So patients present with symptoms and the symptoms, pain, are usually in the hand, and the pain is associated often with numbness or pins and needles and may be worse at night, but it can also be worse with using the hands, particularly hyperflexion of the hands can - can cause the pain to occur. Then they also have weakness, and they may drop objects and they often complain of clumsiness, and then the examination, I may find weakness in the muscles innervated by the median nerve, so particularly the abductors of - the thumb abductor, and also there’s a typical sensory loss in the distribution of the median nerve, and then two tests are very useful, Tinel’s test, where I tap over the carpal tunnel and that may cause - reproduce some of the symptoms, cause the pain down, nerve pain into the fingers, and also Phalen’s test where I ask the patient to hyper-flex the wrist, and that may also reproduce the symptoms, and then I may organise nerve conduction studies to try and confirm my clinical diagnosis, and they’re really the main ways of confirming - of diagnosing carpal tunnel syndrome.[80]
[80] Transcript, page 3, lines 46-47 and page 4, lines 1-14.
He outlined the recommended treatment for CTS:
… there are conservative and less conservative measures. The conservative measures, sometimes patients can wear a splint, a night splint, and that can help. You can get them over - over the - over a flare of the condition; steroid injections into the carpal tunnel can help. If the carpal tunnel is linked to weight gain; sometimes weight reduction can help; treating any underlying disease such as thyroid disease if it’s causing that, or if it’s due to inflammatory arthritis, treating the underlying condition. But a lot of patients require surgical release of the carpal tunnel, and that’s quite a common procedure that’s done and it’s usually a very successful procedure.[81]
Difference between Synovitis, Tenosynovitis and CTS
[81] Transcript page 4, lines 17-25.
Professor Youssef was asked to explain the difference between synovitis, tenosynovitis, and CTS. He stated:
… synovitis is inflammation of joints. So - and tenosynovitis is inflammation of - of tendons, and - whereas carpal tunnel syndrome is compression of the median nerve in the wrist. So they’re different. So synovitis, one would see joint swelling, there would be joint tenderness, there might be restricted movement in the joint, and also with tenosynovitis there would be swelling over the tendons involved. There would be tenderness over those tendons and radiological investigations, perhaps an ultrasound or an MRI may show swelling in those structures.[82]
[82] Transcript page 8, lines 40-47.
He was asked whether clumsiness and dropping things are associated with synovitis/tenosynovitis:
No, again synovitis - synovitis won’t cause clumsiness and sudden dropping of things. Patients will complain of pain when they grip something, but they won’t just suddenly drop it. So they might complain of pain in grabbing something, but they may then put it down but they won’t suddenly drop it; it’s a loss of sensation that leads to that sort of clumsiness and sudden dropping.[83]
Nerve conduction test
[83] Transcript page 9, lines 15-20.
Professor Youssef was asked to interpret the finding of ‘Normal conduction in her ulnar nerves’ in Dr Andrews’ nerve conduction studies report dated 31 August 2006. He stated:
… [O]ne of the causes of numbness in the hands is - is ulnar neuropathy, so affecting the ulnar nerve. It’s a different distribution to the median nerve, so in this case there was no evidence of an ulnar neuropathy causing, you know, pins and needles or weakness in the hand, so that’s important. And it also suggests that the test worked well, in other words if there was normal ulnar conduction, you know, the test, you know, worked well, it was done, you know, correctly, and the nerves were normal and then others were abnormal. So it did suggest that the electrical testing was done well and accurately.[84]
[84] Transcript page 4, lines 35-43.
When asked to comment on the finding of ‘moderate severity’[85] carpal tunnel syndrome, he said it is ‘quite a significant result’.[86] Nerve conduction studies of patients ‘with sometimes significant symptoms can often be mild only and so a finding of moderate severity [is] quite confirmatory and is usually associated with symptoms.’[87] He was asked whether there is a difference between mild and moderate CTS to which he said ‘Yes, I think moderate findings are much more convincing than mild findings.’[88] He noted that Dr Andrews appeared ‘to be quite confident that there is swelling of the median nerve, and that sort of severity would be associated with symptoms …’.[89]
[85] Transcript page 4, line 45.
[86] Transcript page 4, line 45.
[87] Transcript page 4, lines 46-47 and page 5, lines 1-4.
[88] Transcript page 5, lines 13-14.
[89] Transcript page 5, lines 3-4.
Professor Youssef was asked about whether Dr Andrews’ nerve conduction studies report would have been information that would have been of assistance to Associate Professor Barnsley in making his diagnosis of the Applicant had it been made available to him. He stated:
Professor Barnsley’s a very good doctor, and perhaps if he had more convincing evidence … that he may have been more convinced about the possibility of carpal tunnel syndrome because it is a muscle innervated by the median nerve.[90]
Diagnosis of Chronic Regional Pain Syndrome Type 1
[90] Transcript page 5, lines 24-27.
Professor Youssef was asked about whether there are diagnostic criteria that provide guidance as to when a diagnosis of chronic regional pain syndrome Type 1 (CRPS1) can be made. He stated:
Yes, there are clinical criteria and then there are radiological criteria as well, and the clinical criteria are the typical symptoms of - of pain and it may be in the distribution of a nerve but it’s often more diffused in a limb, and there are temperature changes, skin colour changes; there may be loss of hair, there may skin atrophy, there may be muscle wasting as well. There is hyperalgesia and hypersensitivity, an excessive pain response to, for example, a pin prick and stimuli that don’t cause pain, such as, you know, a testing sensation with cotton wool may cause pain. So that’s called allodynia. It’ll be hyperalgesia allodynia, and then there may be radiological changes on, for example, the thinning of bones or changes in bone, and sometimes early on a bone scan may show reduced blood supply to the - to that - that area, to that limb that’s affected. So there are different criteria.[91]
…
…complex regional pain syndrome is usually obvious. The changes are continuous. They don’t come and - come and go. I mean, people do get, you know, in changes of weather people will get skin colour changes and changes with activity. I think that is part of, you know, can be part of normal, we see it as doctors. I - I just don’t think that this incident, skin colour change as described is - is a complex regional pain syndrome type 1. Complex regional pain syndrome type 1 is a significant disorder which is quite symptomatic and very disabling.[92]
[91] Transcript page 8, lines 14-27.
[92] Transcript page 23, lines 39-46.
Professor Youssef noted that there had been no documentation in relation to CRPS1 in relation to the Applicant by any of the doctors in the notes he had seen, and he found no evidence of it.[93] If CPRS1 were present ‘[i]t would have been obvious to them and [the symptoms] would have been there all the time.’[94] He was asked whether CTS can progress into CRPS1 to which he replied, ‘No, it wouldn’t progress into CRPS type 1.’[95]
[93] Transcript page 7, lines 31-32.
[94] Transcript page 20, lines 45-47.
[95] Transcript page 8, line 30.
Professor Youssef explained that the symptoms of CTS and CRPS1 are similar but they can readily be distinguished clinically:
They - pins and needles and numbness can occur in both conditions, but they’re easy to separate on the other features. For example, in carpal tunnel syndrome, the sensory abnormalities in the distribution of the median nerve. So that's easy to separate out from a complex regional. You don’t get the ongoing colour and temperature change, you - and the skin thinning that you get with a complex regional pain syndrome type 1. So there - it is easy to separate clinically.[96]
Opinion in relation to early diagnoses
[96] Transcript page 21, lines 23-29.
In relation to Dr Marinos’ diagnosis in November 2003 of ‘regional pain syndrome’, Professor Youssef said that in his opinion he ‘made a misdiagnosis’.[97] He explained:
the diagnosis was very likely to be carpal tunnel syndrome at that time … To diagnose a regional pain syndrome you – you really make that diagnosis when you don’t find another cause. Weakness has a cause, so I just think it’s an inaccurate diagnosis. If there was weakness or clumsiness there would be a cause for that, most likely carpal tunnel syndrome …[98]
[97] Transcript page 12, line 4.
[98] Transcript page 11, lines 45-47 and page 12, lines 1-4.
Professor Youssef was asked about Dr Eaton’s handwritten consultation notes dated 14 January 2004 when he diagnosed the Applicant with ‘severe occupational overuse injury/regional pain disorder’. He noted that he could not see whether Dr Eaton did the Tinel’s and/orPhalen’s tests as these ‘may have helped him make a diagnosis of carpal tunnel syndrome’.[99]
[99] Transcript page 6, lines 23-24.
He was asked about Dr Eaton’s consultation note from 11 December 2006 in which he noted a positive Tinel’s test for the Applicant and provided a diagnosis of ‘occupational overuse injury’ (OOS). Professor Youssef told the Tribunal that the positive Tinel’s test indicated CTS, and OOS was therefore an unnecessary ‘non-specific diagnosis’.[100]
[100] Transcript page 10, line 22.
Professor Youssef explained that the label ‘regional pain syndrome’ is one ‘given to pain in a limb or a region really where there is no other cause documented, no specific cause.’[101] In the Applicant’s case, Dr Eaton had found CTS and therefore the ‘label of regional pain syndrome is incorrect. There is a specific cause that would explain the symptoms.’[102]
[101] Transcript page 10, lines 42-44; see also page 20, lines 23-26
[102] Transcript page 11, lines 1-2; see also page 38, lines 12-13.
Professor Youssef told the Tribunal he disagreed with Associate Professor Barnsley’s diagnosis that the Applicant has ‘a regional pain syndrome on both sides and on the right side particularly there are features suggestive of some persistent complex regional pain syndrome’.[103] He also disagreed with Associate Professor Barnsley’s finding that the Applicant’s tenosynovitis/synovitis or carpal tunnel syndrome in 2003 ‘precipitated’ CRPS1:
… I would have to disagree with that statement. I don’t think that there was ever definite evidence of ongoing complex regional syndrome type 1. I did answer earlier that if there was significant damage to the median nerve that a complex regional pain syndrome can be set up due to damage to a nerve and that would be CRPS 2 which is caused by nerve damage and that can cause symptoms in the distribution of a specific nerve. If a complex regional pain syndrome was caused by carpal tunnel, then the signs would be in the distribution of the carpal tunnel, sorry, of the median nerve because that would be the damaged nerve. I can’t see how tenosynovitis really, or chronic, if there was chronic tenosynovitis/synovitis would cause a carpal - a chronic - sorry, complex regional pain syndrome type 1.[104]
[103] T28, 69 Report of Associate Professor Les Barnsley dated 18 August 2010 ‘Summary and Assessment’.
[104] Transcript page 25, lines 13-23.
He noted that Professor Barnsley did not document Tinel’s or Phalen’s test results or a sensory examination of the Applicant’s hand. Professor Barnsley ‘found abductor pulses brevis weakness, yet didn’t seem to consider that that may be due to carpal tunnel syndrome.’[105] Whether Professor Barnsley did conduct the Tinel’s and Phalen’s tests, and if he did not the reasons why, are matters ‘he would have to be asked specifically.’[106]
Causal factors for carpal tunnel syndrome
[105] Transcript page 22, lines 5-6.
[106] Transcript page 22, lines 22-23.
Professor Youssef was asked about the causal factors for CTS. He stated:
So carpal tunnel syndrome is compression of the median nerve in the carpal tunnel with the wrist, and the causes are thought to be related to obesity; that’s one of the most common causes, so a high BMI, although not everyone has a high BMI, body mass index. Other causes include thyroid disease and diabetes can cause it, so some of the endocrine conditions. Patients with inflammatory arthritis such as rheumatoid arthritis who have inflammation in the wrist can also develop carpal tunnel syndrome, so an inflammatory cause. They’re the main - main causes that we see of carpal tunnel syndrome, and in some people they have a small or a narrow carpal tunnel and, you know, and just develop it over time.[107]
[107] Transcript page 13, lines 18-27.
When asked whether he stands by the opinion he expressed in his written report that ‘[c]arpal tunnel syndrome is a constitutional disorder’,[108] he said he should have written that it ‘is almost always a constitutional disorder’.[109]
[108] T59, 264 Report of Professor Youssef dated 31 January 2017 ‘Summary and Assessment’.
[109] Transcript page 23, lines 29-30
Professor Youssef was asked whether there are environmental or occupational risk factors which may contribute to CTS. He stated:
The occupational risk factors are things like, you know, using a drill and that, so repetitive use of a drill, or vibration … can … damage … the median nerve.[110]
[110] Transcript page 14, lines 46-47; see also page 23, lines 3 and 18 and page 28, line 12.
When asked to briefly explain the three attachments in his report dated 31 January 2017 Professor Youssef stated:
They’re studies basically looking at whether carpal tunnel syndrome is associated with keyboard use, and there are population studies, and basically they show no association of carpal tunnel to the keyboard use, and in fact some of the work suggests that there may be a reduced association in patients who use - especially workers, keyboard workers, a negative association.[111]
[111] Transcript page 3, lines 39-44.
As to whether hyperflexion of the hands while keyboarding may lead to the symptoms of CTS, Professor Youssef stated:
So if you hyper-flex you increase the pressure in the carpal tunnel and you can get the - the symptoms. They can exacerbate the symptoms, but it would have to be on continuous hyper flexed posture ongoing for long periods which is not something you could do at work. I mean you wouldn’t be able to use the keyboard if your fingers were hyper-flexed all the time, and I don’t mean just a little bit flexed, I mean hyper, because a lot of the time some people do use their keyboard with their wrists a little bit flexed and other people have their wrists a little bit extended, but that hyper-flexed position may be the only position I could think of that may lead to the development of carpal tunnel syndrome even that hasn’t - I haven’t seen any studies, you know, documenting that.[112]
[112] Transcript page 15, lines 12-22; see also p17 and p38
Professor Youssef was asked whether he would rule out workplace postures as a cause of CTS to which he replied:
I think that if the workplace involved prolonged significant flexion, it could possibily cause carpal tunnel syndrome … It would be hyperflexion at the wrist.[113]
SUBMISSIONS
Applicant
[113] Transcript page38, lines 24-27.
Condition affecting the Applicant
The Applicant’s condition is Complex Regional pain Syndrome Type 1 (CRPS1).[114] She was originally diagnosed with occupational overuse syndrome, specifically synovitis and tenosynovitis, which has progressed over time to develop into CRPS1.[115] She has elements of CTS but this is only a component in the development of her condition to CRPS1.[116] The fact that the Applicant’s symptoms can be diagnosed as CTS does not preclude other conditions such as chronic pain, specifically CRPS1.[117] Conditions other than CTS have constantly been reported by the Applicant’s doctors and Comcare’s consultants.[118]
[114] Exhibit A1, para 5.5
[115] Exhibit A1, paras 5.2 and 5.5 and para 5.12.
[116] Exhibit A1, para 5.4
[117] Exhibit A1, para 5.4 and para 5.8.
[118] Exhibit A1, para 5.4
The Applicant did not have an underlying condition. Prior to 2003 she was well and had suffered no serious accidents or injuries.[119] She was not obese at the time of the development or during progression of the condition, or when Professor Youssef examined her.[120]
[119] Exhibit A1, para 5.6
[120] Exhibit A1, para 5.7.
Contribution of employment to condition
The Applicant’s employment with the ACT Department of Education and Youth Affairs materially contributed to her condition.[121] Doctors have agreed at various times that the injury is work related, including Professor Barnsley (18 August 2010 report), Dr Eaton (letter dated 27 November 2010) and Dr Reed (Medical certificate 24 May 2016).[122] The injury was accepted by Comcare as contributed to by the Applicant’s employment.[123]
[121] Exhibit A1, para 5.3
[122] Exhibit A1, para 5.5.
[123] Exhibit A1, para 5.3
There is medical literature which suggests that CTS is not constitutional but can be contributed to by the workplace environment involving repetitive injuries and poor ergonomics involving poor posture.[124] As CTS has been identified as a component of the Applicant’s condition and there are external factors such as poor ergonomics associated with CTS, the conclusion that it is these that caused the Applicant’s injury and disease is wholly consistent and proven.[125]
[124] Exhibit A1, para 5.9
[125] Exhibit A1, para 5.9.
Continuing compensable condition
The Applicant’s condition commenced in 2003 and has continued to the present time. It is not improving but is deteriorating over time.[126] She has a permanent compensable condition, specifically CRPS1.[127]
[126] Exhibit A1, para 5.11
[127] Exhibit A1, para 5.12.
Supervised exercise/gym program
The Applicant has CRPS1 and a supervised gym program is an accepted medical treatment for this condition.[128] This is supported by the Applicant’s doctors and Comcare’s consultants.[129] The exercise program assists with the Applicant’s compensable injury and is targeted to its treatment.[130]
[128] Exhibit A1, para 5.14
[129] Exhibit A1, para 5.15.
[130] Exhibit A1, para 5.16. See also paras 2.5-2.7 page 17.
Domestic and gardening assistance
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 5.17
Decisions sought
The Applicant seeks a decision that the Reviewable Decisions be set aside.
Respondent
Applicant’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 4.10
Gym 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.
The Applicant does not have a compensable condition. A gym program cannot be paid ‘in relation to’ her non-compensable carpal tunnel condition.[144]
[144] Exhibit R1, paras 4.12.
Drs Barnsley, Eaton and Professor Youssef all found that the Applicant’s gym program provides psychological and general health benefits. There is no evidence that it treats the claimed condition or its symptoms (if any).[145]
[145] Exhibit R1, paras 4.13.
It is unreasonable for the Applicant to be compensated for a gym program. There is no evidence that it provides a measurable benefit in relieving the symptoms of the claimed condition (if any). It is inconsistent that the Applicant is able to undertake strenuous exercise in the gym but claims to suffer pain in performing and an inability to perform household tasks.[146]
[146] Exhibit R1, paras 4.14
Decisions sought
The Respondent seeks a decision that the Reviewable Decisions are affirmed.
CONSIDERATION AND FINDINGS
What 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.
The diagnosis by Associate Professor Barnsley of complex regional pain syndrome type 1 (CRPS1) four years later in August 2010 was made without reference to the nerve conduction studies report of Dr Andrews that found CTS of ‘moderate severity’. The Tribunal relies on the expert opinion of Professor Youssef that had Associate Professor Barnsley been provided with Dr Andrews’ report he ‘may have been more convinced about the possibility of carpal tunnel syndrome’.[148] It appears that Associate Professor Barnsley did not conduct Tinel’s or Phalen’s tests nor a sensory examination of the Applicant’s hands. Whether he did conduct these tests but did not document the results, or whether he had clinical reasons why he did not consider the tests to be appropriate or necessary, are questions that could not be asked of Associate Professor Barnsley. The Tribunal relies on the expert opinion of Professor Youssef that the presence of ‘abductor pulses brevis weakness’ noted by Associate Professor Barnsley would ordinarily lead a specialist to consider this an indication of CTS.[149]
[148] Transcript page 5, line 25.
[149] Transcript page 22, line 5.
The Tribunal further relies on the expert evidence of Professor Youssef that there is no documentation in relation to CRPS1 by any of the doctors in the materials he reviewed despite the fact that if it were present ‘[i]t would have been obvious to them’[150] as the clinical criteria of CRPS1 are distinctive and the changes in skin colour and temperature are continuous and ‘would have been there all the time’.[151] The Tribunal further notes that there is no evidence of radiological studies being undertaken of the Applicant which, according to Professor Youssef, are criteria of CRPS1, for example the thinning of or changes to bones.
[150] Transcript page 20, line 45.
[151] Transcript page 20, line 45.
On the basis of the evidence before it, the Tribunal finds that the diagnosis of CTS made by Professor Youssef in his January 2017 report and confirmed in his oral evidence at the hearing, is to be preferred over the diagnosis of CRPS1 made by Associate Professor Barnsley in August 2010, and subsequently adopted and relied on by Drs Eaton and Reed in completing the workers’ compensation medical certificates for the Applicant. The Tribunal finds that the appropriate diagnosis of the Applicant’s condition at the date of the claim in December 2003 was bilateral CTS, and that this continues to be the appropriate diagnosis of her condition.
Is the Applicant’s bilateral carpal tunnel syndrome an ‘ailment’?
The Tribunal finds that the Applicant’s diagnosed condition, bilateral CTS, satisfies the definition of ‘ailment’ in s 4 of the SRC Act. In making this finding the Tribunal has had regard to the comprehensive discussion of the nature of CTS by Deputy President Boyle in Re Cross and Comcare [2018] AATA 52 [59]-[68]. In the more recent Tribunal decision in Wincott-Whyte and Comcare [2018] AATA 1631 at [164], Member Gallagher was satisfied that the ‘entrapment of the median nerve, that is, the median nerve being compressed at a number of distinct sites along the course to the wrist meets the definition of an ‘ailment’ in subsection 4(1) of the SRC Act.’ The Tribunal agrees with this analysis and finds that bilateral CTS meets the definition of ‘ailment’ in the SRC Act.
Did the Applicant suffer a ‘disease’?
At the date of the claim in December 2003, s 4(1) of the SRC Act defined ‘disease’ as an ailment or aggravation of an ailment suffered by an employee ‘that was contributed to in a material degree by the employee’s employment by the Commonwealth.’
In Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536, Finn J provided guidance on ascertaining the meaning of ‘material degree’:
[13]… the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
[14] What is problematic is identifying where the threshold lies. Treloar’s case sets its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimus contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe the contribution as “material”: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term “material” in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
[15] There are, in my view, obvious hazards in allowing finely tuned nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions in the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
4. In a material degree; substantially, considerably.
An example given of this usage is that of contributing “materially to the funds required” for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the “loose sense” of the definition of “material” in the Macquarie dictionary “namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’”.
[16] Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.
In Hennessey-Milne and Comcare [2018] AATA 4453, Deputy President Sosso noted that ‘material degree’ is substantially less than a ‘significant degree’ which is defined in s 5B(3) SRC Act as a ‘degree that is substantially more than material.’ Accordingly, ‘material degree’ is, as the Deputy President observed, ‘a more generous standard for an injured worker than that which applies following the 2007 amendments’ (at [180]).
Was the Applicant’s ailment contributed to in a material degree by her employment?
Having regard to the guidance provided by Finn J in Comcare v Sahu-Khan, the Tribunal must evaluate all of the relevant contributing factors to determine whether the Applicant’s employment contributed to a material degree to her ailment.
The evidence before the Tribunal in relation to the causal factors for CTS is that it is primarily a constitutional disorder, but there are environmental factors, including workplace activities, that may contribute to the condition.
In his evidence, Professor Youssef explained that the constitutional factors include obesity (high BMI), although not everyone with CTS has a high BMI, some of the endocrine conditions such as thyroid disease and diabetes, and inflammation conditions such as rheumatoid arthritis in the wrist. However he emphasised that it is not necessarily the case that CTS will co-exist with one of these other conditions because ‘some people … have a small or a narrow carpal tunnel and … just develop [CTS] over time.’[152]
[152] Transcript, page 13, lines 26-27.
In relation to environmental or occupational risk factors for CTS, Professor Youssef explained that these are limited, but may arise where there is the ‘repetitive use of a drill, or vibration’ sufficient to ‘damage … the median nerve’. [153] He told the Tribunal that the medical literature does not support a finding that there is an association between carpal tunnel syndrome and typing or keyboarding and there is some support in the literature ‘that there may be a reduced association in patients who use - especially workers, keyboard workers, a negative association.’[154]
[153] Transcript, page 14, line 47.
[154] Transcript, page 3, lines 42-44.
The Applicant challenged Professor Youssef in relation to his opinion that environmental factors including typing/keyboarding and posture are not causal factors for CTS. Professor Youssef did not accept that these are contributing factors other than in the rare circumstance of ‘continuous hyper flexed posture ongoing for long periods’. However he emphasised that this is not a realistic scenario in the workplace, as an individual ‘wouldn’t be able to use the keyboard if [their] fingers were hyper-flexed all the time’.[155]
[155] Transcript page 15, lines 16-17.
On the basis of the evidence before it, the Tribunal is not satisfied that the Applicant’s workplace duties, specifically the awkward posture she adopted at her desk in order to complete the typing and keyboard activities required to perform her teaching role, contributed to a material degree to her CTS condition. The Applicant was not exposed to any of the environmental risk factors for CTS in her workplace identified by Professor Youssef such as the use of drills or vibrating equipment. There is no evidence that she adopted a continuous hyper-flexed posture with her hands while at her desk or in the course of her other teaching duties. It is not necessary for the Tribunal to make a finding as to which of a range of constitutional factors may have caused the Applicant’s CTS. It is sufficient for it to find, as it has, that the CTS (ailment) was not contributed to in a material degree by the Applicant’s employment.
CONCLUSION
The Tribunal is not satisfied that the Applicant suffered a ‘disease’ for the purposes of s 4(1) of the SRC Act.
It follows that the Applicant did not suffer an ‘injury’ for the purposes of s 5A of the SRC Act for which the Respondent is liable to pay her compensation.
As there is no compensable injury, the Respondent is not liable to pay the Applicant for medical treatment or gym membership under s 16 SRC Act or household services under s 29 SRC Act.
DECISION
The Reviewable Decisions are affirmed.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
........................................................................
Associate
Dated: 11 February 2019
Date(s) of hearing:
18 October 2018 - 19 October 2018
Date final submissions received:
19 October 2018
Advocate for the Applicant:
Mr Peter van de Waterbeemd
Counsel for the Respondent:
Ms Sarah Wright
Solicitors for the Respondent:
Mr Ron Moss, Comcare Legal
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