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…
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- Van de Waterbeemd and Comcare (Compensation) [2019] AATA 118
- Case
- [2019] AATA 118
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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.