Webber and Comcare
[2010] AATA 348
•11 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3192
GENERAL ADMINISTRATIVE DIVISION ) Re KERRY WEBBER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Presiding Member Date11 May 2010
PlaceCanberra
Decision The decision under review is set aside and in substitution the Tribunal finds Comcare is liable to compensate Ms Webber for an injury, namely a disease, for the period from 1 October 2006 to 14 August 2007. ...........................[sgd]...............
Professor RM Creyke, Presiding Member
CATCHWORDS
COMPENSATION – whether Applicant suffered a ‘disease’ that was materially contributed to by the Applicant’s employment – Applicant has chronic fatigue syndrome (CFS) – whether symptoms a result of Applicant’s underlying condition or word processing during employment – CFS symptoms in remission prior to relevant period – Applicant’s employment required heavier word processing than previous employment – Applicant’s symptoms increased during employment and decreased following leave – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14
Re Albanese and Comcare [2004] AATA 768
Comcare and Sahu-Khan (2007) 156 FCR 536
Re Halliday and Comcare (1994) 19 AAR 431
Re Vo and Comcare [2005] AATA 773
Weigand and Comcare [2002] 72 ALD 795
11 May 2010 REASONS FOR DECISION
Professor RM Creyke, Presiding Member
1. Ms Webber was employed by the Department of Human Services (the Department) from 2005 until she resigned in June 2008. She had been in the Australian Public Service since 1982. On 22 February 2007 she made a claim for 'chronic overuse WP [word processing] problem’ affecting her 'neck, shoulders, arms, hands'. It was contended that a correct description of the injury is 'recurrent (non-specific) pain in her arms and neck'. Ms Webber also suffered from chronic fatigue syndrome.
2. Comcare rejected the application for ‘synovitis & tenosynovitis (bilateral) and aggravation of myalgia and myositis, unspecified (fibromyalgia)’ on 30 July 2007, a decision upheld on review on 9 May 2008. On 17 July 2008, Ms Webber appealed to the Tribunal. The appeal was heard by the Tribunal on 15 to 17 March 2010.
Legislation
3. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The particular provisions are section 14 of the Act, which provides for the circumstances in which Comcare is liable to pay compensation for an injury suffered by an employee where that injury results in incapacity for work or impairment. 'Injury' is defined to include a disease which in turn includes an 'ailment' and an 'aggravation of ... an ailment'. 'Ailment' and an 'aggravation' are defined in section 4(1) of the Act as follows:
4(1) aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Issues
4. The issues are:
· Whether Ms Webber has suffered an 'injury' as defined in the Act?
· Whether that 'injury' is a 'disease', that is, an ailment, or an aggravation of an ailment?
· If so, whether the 'disease' was suffered prior to 13 April 2007?
· If so, whether the 'disease' was contributed to, to the degree required by the relevant provision in the Act by Ms Webber’s employment by the Department?
Background and evidence
Ms Webber's evidence
5. Ms Webber said in 1990 she had what was described as gastric flu but which was later diagnosed as chronic fatigue syndrome. Her symptoms were primarily of chronic tiredness, with low back pain and stiffness in her back and legs. She was eventually treated with a variety of anti-depressant medications for her condition, twice monthly massages, regular rest, and only moderate exercise and she made a good recovery, working without any physical discomfort. She continues to take the medication. The condition gradually improved over about 5 years and she said in 2007 she had had no major relapses for over ten years. When she joined the Department in 2005 she said she was in the best health she had been for years.
6. Ms Webber said she joined the Department to get policy management experience. Prior to 2005, she had been a program manager for 10 years and then a director within the Department of Health and Ageing. As a director, she was responsible for a team of 15 people and in that role her keyboarding work was minimal. By contrast, in the Department Ms Webber said for the most part she had no-one supporting her so she had to do considerably more keyboard work.
7. Her duties at the Department required her to manage a range of policy issues for the Department, including the response to the ‘red tape’ report on regulatory reduction, the integration of indigenous services for Centrelink, and the pandemic influenza project work, as well as day-to-day responses on other policy issues affecting the agency.
8. In October to November 2006 she had a deadline of the end of November 2006 to complete a comprehensive policy framework on a pandemic for the Department and its five related agencies. This policy framework was needed by the Department of Prime Minister & Cabinet. Her work included the preparation of a number of substantial documents in addition to her other work duties and these involved increased computer use. She said the final pandemic framework document comprised between 20-30 pages. In combination, she calculated she was doing computer-related work, on average, for 78 per cent of the time. For six weeks of this period the average was 82 per cent. She said she worked 8 hour days during this period which, she conceded, was not excessive for someone at her level.
9. Ms Webber provided Comcare with her Compiled Work Diary for October to November 2006, which she developed when she discovered the Department did not support her claim. The Compiled Work Diary was based on her contemporaneous work diary and notebooks and covered all the tasks she was undertaking, not just her work on the pandemic project. Ms Webber calculated that computer related tasks for the pandemic work during October to November 2006 would have amounted to 109 hours in total, or about 2.5 hours a day or 31.25 per cent of her day based on an 8 hour day. The computer-related tasks listed in her Compiled Work Diary amounted to 238 hours, or 5.5 hours a day, amounting to 68.75 per cent of her time.
10. As a consequence of this workload she claimed she developed headaches, chronic pain in her neck, which radiated to both shoulders, arms, wrists and fingers, and her fingers swelled. The headaches, the swelling and the pain in her arms were not symptoms she had previously experienced with her chronic fatigue syndrome. The symptoms were worst just prior to going on leave in December 2006. The pain was constant and did not resolve fully with rest or during her recreation leave between 18 December 2006 and 8 January 2007.
11. On her return to work in January 2007, her symptoms quickly reappeared and because she feared she might have arthritis in her finger joints she consulted Dr Thew on 14 January 2007. On 22 January 2007, Dr Thew recommended rest for two weeks and blood tests. The blood tests were negative for arthritis. When Ms Webber next visited Dr Thew on 31 January 2007, Dr Thew diagnosed her condition as chronic work-related tenosynovitis. Ms Webber said this diagnosis explained why she had told Ms Blewett, her immediate supervisor in the Department, earlier in January that her condition was not work-related. It was not until Dr Thew provided the diagnosis of tenosynovitis that she attributed her symptoms to her keyboarding. Dr Thew prescribed further leave from 5 to 9 February 2007, followed by a graduated return to work, with no more than 50 per cent keyboard work. On medical advice at that time, Ms Webber was being treated with Pilates and therapeutic massage and was improving.
12. From early March 2007, for family reasons, Ms Webber had to take further time off but returned to work on 10 April 2007 on the same pre-departure conditions. This continued until 28 June 2007, when she returned to full time work. At that time she said she perceived her workplace as being more confrontational. She made a request to be moved from her current supervisor however this was refused. Her symptoms began to recur and on Dr Thew's advice it appears Ms Webber took leave from 29 June 2007 until 16 August 2007. On 17 August 2007 Ms Webber had an operation, unrelated to her claimed condition.
13. She returned to work on 18 October 2007, symptom-free, and worked fulltime until 17 December 2007. By then she said she had a more sympathetic supervisor. However, no limitations were placed on her keyboarding work and over the next two months she developed recurrent symptoms of pain across the shoulders, in both arms and the hands. At that time, she was involved in preparing briefing documents for the incoming Labor Government and was at the computer much of the day. As a consequence, she again suffered a recurrence of her symptoms.
14. On 17 December 2007, Dr Thew recommended Ms Webber’s work hours be reduced to 4 hours each day with no more than 50 per cent keyboarding. This regime to continue until 6 January 2008. Despite these restrictions, and Ms Webber undergoing acupuncture and Bowen therapy once a week, her pain continued. So on 7 January 2008, Dr Thew again prescribed restricted working hours. These remained in place until Ms Webber resigned from the Department on 13 June 2008, after her request to be moved to a position with less keyboarding was denied. Since then, apart from some minor aching pain in her left shoulder and arm region and some tightness in her legs after exercise related to her chronic fatigue syndrome, Ms Webber says her condition is normal.
15. In evidence to the Tribunal in response to statements made by work colleagues for the purpose of the hearing, Ms Webber denied Ms Blewett’s assessment that Ms Webber’s workload was less demanding than others at her level. Ms Webber said that Ms Blewett was not in a position to assess the intensity of her work in October to November 2006 since, according to Ms Webber’s work diary, Ms Blewett had only become her supervisor on 30 October 2006, and after that date she had no meeting with her about pandemic-related matters until mid December 2006, just prior to her leave. At that time she was reporting to Mr Geoff Leeper, Deputy Secretary, via Mr Jeff Popple, First Assistant Secretary.
16. She noted that even though she and Ms Blewett worked in the same pod station, Ms Blewett would not have been able to view what she was doing unless she was standing up since they were separated by a partition. Ms Webber denied that her failure to gain a salary increase had anything to do with her problems with Ms Blewett, as Ms Blewett’s report had suggested. Ms Webber’s request for an upgraded assessment for her performance review was made to her previous supervisor, Mr Greg Poyser in July 2006. The performance review was finalised by Mr Geoff Leeper during November 2006, since Mr Poyser had left. Mr Leeper confirmed Ms Webber’s rating as ‘fully effective’ but would not rate her higher. Ms Webber said, 'from my perspective the matter ended there and has not been an issue for me during 2007 at all'.
17. Ms Webber also said neither Mr Popple nor Mr Leeper was in a position to estimate the amount of computer-related work she was doing since she only interacted with them on high level policy work. Nor could they estimate the amount of time she actually spent at meetings. Her own records were based on her notes in her diary, were completed at the time, and were a more accurate account.
18. Ms Webber said Ms Hanson, whose work she took over in the Department, would not have been aware of the amount of work in the second phase of the pandemic project since Ms Hanson had left by then. The topic was a ‘hot topic’ when she was undertaking it which involved extra focus and effort. The oversight by the Deputy Secretary was an indication of this status.
Medical and allied professional evidence
19. On 21 February 2007, Dr Lyn Thew, Ms Webber's treating medical practitioner, said that prior to 2006 she was treating Ms Webber for joint stiffness and fatigue issues. In early 2007, Ms Webber consulted her about severe pain affecting her neck, shoulders, arms, hands, and fingers. Ms Webber was experiencing considerably more pain and inflammation in her upper body, tight trapezius muscles, and swelling in her fingers. These were new symptoms which had not previously been a problem with her chronic fatigue syndrome. Dr Thew provided a medical certificate on 21 February 2007 diagnosing 'chronic overuse (WP) problem', a diagnosis she said she only makes conservatively, and certified her as unfit for work from 24 February 2007 to 24 March 2007. Dr Thew said tightness in the trapezius muscles is a condition which commonly arises from holding the same position for an extended period of time.
20. Dr Thew acknowledged that she formally reported tenosynovitis in May 2007, but said she had detected it earlier, for example, in her reference to fibromyalgia in November 2006, to ‘arthralgia’ on 14 January 2007, and her diagnosis on 21 February 2007 of ‘chronic overuse injury’. Dr Thew also said that when she had diagnosed fibromyalgia she had sent Ms Webber to a rheumatologist for treatment, although there was no evidence that this occurred. However, she acknowledged, in making that diagnosis, that she had not considered whether Ms Webber met all the trigger points for the conditions. In her view, however, it was a long-standing condition. She agreed that an alternative explanation could have been a post-viral infection, but said when the symptoms continued she decided it was something else. She also pointed out that Ms Webber’s pain or discomfort from chronic fatigue syndrome had been of a generalised nature whereas in January 2007 she appreciated that the symptoms Ms Webber was then exhibiting were more specific than for chronic fatigue syndrome and required an alternative diagnosis.
21. Dr Thew provided a report to Comcare on 21 May 2007 which stated:
Kerry Webber has a long history of fibromyalgia-like symptoms with recurrent chronic fatigue issues. This has been documented over many years.
In early January she presented with a relapse in major joint pain and fatigue, particularly with pain in her shoulders and her upper arms and neck. At first I thought this was a relapse in her fatigue fibromyalgia problem, but after the passing of a couple of weeks, I realised that this was, in fact, a workplace over-use problem triggering her underlying issue. It was an irritation of fibromyalgia symptoms caused by an over-use problem at work ... I ... suggested she seek appropriate massage therapy.
Despite numerous massages, her upper body, hands, forearms, shoulders and cervical area across her back remained painful. She was clinically tender with spasm in her paraspinals, trapezius and also had bilateral tenosynovitis in both forearms... [W]ith the overuse of her upper body during late 2006, word processing for many hours at a time, she has an over-use problem additional or triggering recurrence of the pain, muscle pain and fatigue problem that she has suffered for years.
22. Dr Thew also noted that from 21 February 2007 to 28 June 2007 Ms Webber was on a graduated return to work, and on her recommendation the graduated return to work program was resumed on 19 December 2007 and continued until 18 May 2008 when Ms Webber ceased working prior to resigning in June 2008.
23. On 14 August 2007, Dr Leon Le Leu, occupational physician, provided a medical report. He noted that Ms Webber had reported that she always suffers from some pain due to her chronic fatigue syndrome but by 14 August 2007 her hands, wrists and neck were close to pain free. In his report, he referred to 'an unresolved conflict with [Ms Webber's] supervisor' and stated:
On the basis of what [Ms Webber] tells me it seems quite possible she did have an overuse condition relating to increased keyboarding in late 2006. However, I cannot say that she has a 'condition' now. The signs are so non-specific. I note she is neither depressed nor anxious.
24. He also noted: 'It seems that, from her point of view, the reported lack of support in a work environment is the major cause of her not returning to work. That needs to be worked through'. He said of a diagnosis, '[if] we're talking about a physical condition, there is no diagnosable current condition' but it was possible she had an overuse condition in late 2006 and early 2007 'and that it was related to work'. He denied that she suffered from an aggravation of a pre-existing condition.
25. On 14 April 2008, Dr Marcus Navin, occupational physician, provided a report following his examination of Ms Webber on 9 April 2008. At that time she had been off work for five weeks and her injury had settled. However, he noted she suffered from chronic pain. He concluded Ms Webber had tightness and restriction of the muscles of her neck which he believed were long standing and not related to work. He said the 'discomfort she feels in her neck and arm and back relate to muscle contraction and trigger point initiation'. He went on, '[there] is no known physical causation and there is probably an exacerbation arising from her maladaptive posture'. He said 'this is a pre-existing condition related to her longstanding musculoskeletal condition and other issues'. Nonetheless, he said 'there would appear to be a link related to the demands of her scope of work'. He confirmed 'that Ms Webber has recurrence of pre-existing conditions'. At the same time, his cautious response to a question about aggravation was that 'Ms Webber attributes the aggravation of her condition to her being required, due to management inaction, to carry out duties which required more than 50% keyboard work'. He believed she was fit to work but should do so on a graduated return basis.
26. Associate Professor Les Barnsley, consultant rheumatologist, provided two reports, the first dated 23 April 2008, the second, 14 January 2009. In his April 2008 report, Associate Professor Barnsley diagnosed non-specific regional pain, a condition he said was common in the general population, and that there was no evidence of radiculopathy, that is, nerve disorder. He noted that regional pain syndrome is commonly associated with self-reported heavy workload, concurrent depression and previous whiplash-type injuries. He said Ms Webber may have 'some features of fibromyalgia' to which 'her current complaints are related... although she does not meet formal diagnostic criteria lacking pain in three or more body quadrants'. He also denied that she met the tests for tenosynovitis. He said he suspected 'there is a contribution from her pre-existing condition [chronic fatigue syndrome] to her current symptoms' but her current symptoms are 'a new problem over and above her pre-existing fatigue and musculoskeletal discomfort'. He said 'there is a possible relationship between her employment and her current symptoms'. This association was not due to the physical requirements but to 'other stressors at work that are known to be associated with the development of pain syndromes'. However, he said the work component – her perception of stress, the difficult relationship with her supervisor, and working to deadlines – 'contributed to her condition to a minor and insignificant degree'. He concluded she was not incapacitated for work generally, but only for prolonged keyboarding.
27. In his 14 January 2009 report, Associate Professor Barnsley analysed the other medical reports in this matter. In summarising those reports he noted that Ms Webber's condition was variously diagnosed as: no medical condition (Dr Le Leu); chronic regional overuse syndrome (Associate Professor White); tightness and restriction of the muscles of her neck (Dr Navin); thoracic outlet syndrome (massage therapist); and tenosynovitis and fibromyalgia (Dr Thew).
28. His own diagnosis was 'complaints of pain', that is, a pain problem, not a musculoskeletal disorder. However, he also postulated inflammatory arthritis, but said this was constitutional and not work-related and had settled since 2006. He said she also suffers from chronic fatigue syndrome. He believed, however, that the worsening of her neck and arm pain 'is on the basis of some aspects of her work'. However, he stated ‘I consider that work was not the principal cause of her current problems'. He suggested the possible non-medical factor for her condition was her conflict with her supervisor. He did not consider she was incapacitated for employment, but noted it would 'be prudent for her to avoid prolonged periods of typing'.
29. He reported that if she was doing no more typing than previously, with many rest breaks, there would not be any 'material aggravation of any pre-existing problem or new problem as a result of her activity at work'. He went on to say, the 'components at work that have aggravated her symptoms ... are not necessarily physical in nature'. At the same time he said '[no] ailment suffered by Ms Webber has been caused, materially contributed to or aggravated by any non-Agency employment factors'. In addition, he said 'she has the pre-existing problem of chronic fatigue syndrome' which he noted 'is often associated with musculoskeletal symptoms' and said of this non-Agency employment factor, that it 'may contribute to her work disability'. He concluded that 'the ongoing conflict issues at work have resulted in an exacerbation of her pain'. He had been unable to find a cause for her problem.
30. Associate Professor Owen White, a specialist in neuro-physiology, neural ophthalmology and general neural pathology, in a report dated 5 September 2008, noted Ms Webber’s background history of chronic fatigue syndrome and diagnosed an additional 'chronic regional overuse syndrome’.His diagnosis reflected the fact that the condition 'responded rapidly to conservative forms of treatment', an outcome which could not be anticipated for fibromyalgia or chronic fatigue syndrome. He disagreed with a diagnosis of fibromyalgia given the 'generalised nature of her symptoms, the lack of trigger points and the lack of specific focal pain'. He found no signs of any physiological condition. He did not consider Ms Webber’s condition was an aggravation of her chronic fatigue symptom. Her condition was related to work, which contributed significantly and was the primary cause of her symptoms in the upper limbs. He said she was fit to work, provided she did not do 'rapid and repetitive work' or heavy lifting. He acknowledged at the hearing that 25 per cent of her time spent in typing was unlikely to lead to chronic regional overuse syndrome, whereas the reverse would be true if she were typing for 50 per cent of the time. However, he said the response in part depended on the person. He did not refer to the dispute about the amount of typing done by Ms Webber in 2006.
31. Ms Debra Dodson, remedial massage therapist, in a report of 2 February 2007 said she had been treating Ms Webber for some years, generally on a fortnightly basis. She said that on 29 November 2006 Ms Webber reported headaches and pain in her upper back, neck, arms and hands. She said 'the muscles… in these areas are very tight', which she attributed to Ms Webber 'using the computer keyboard at work much more than she had needed to in the past' and she diagnosed thoracic outlet syndrome, which she said involves tightness of the muscles and what she described as ‘the strangling of the related nerves and arteries’. In her view, this was caused by computer overuse and remedial massage would reduce the severity of the symptoms. She said that in October to November 2006, her massage had been focused on Ms Webber’s upper limbs.
32. However, Ms Dodson’s clinical notes show that as early as June 2006, Ms Webber was asking Ms Dodson to concentrate on the thoracic area, including the neck and shoulders. There is a reference on 28 June 2006 to a request to concentrate on the forearms since Ms Webber’s forearms were ‘very sore from working on computer’. She also reported ‘tingling in hands at night – wakes her up’. Ms Webber received ‘deep work’ on her arms in August 2006 and in September 2006, Ms Dodson was asked to concentrate on Ms Webber’s ‘hands, wrists and elbows’. At the visits on 18 October and 1 November 2006, the focus of her treatment was on Ms Webber’s ‘neck and shoulders’. By 15 November 2006, there was a comment, ‘Didn’t do well after last massage. It didn’t feel too deep’. On 19 November 2006, there is a reference to Ms Webber having had ‘a virus this week’. On 12 December 2006, the notation was ‘[still] has virus headache wants work to relieve that’, but the result of the work was ‘Headache gone’.
33. On 10 January 2007, after Ms Webber had been back from holidays for only 3 days, the report was that Ms Webber’s ‘neck and shoulders and arms are hurting around elbow’, but the massage had relieved the discomfort. The reference on 23 January 2007 was ‘really painful elbows, fingers [and] wrists. Dr suspects osteoarthritis, undergoing tests’. On 25 January 2007, the report was ‘pain in arms a little less, headache bit better’. On 27 January 2007, there was less pain around thumb and fingers and her ‘arms feel very tight on medial side. Headache less but still there’. On 30 January 2007, the report said ‘[She wants] to concentrate on relieving headache that she has had for 2 months. Arms and hands feel good at the moment’.
34. Ms Webber had nine visits to Ms Dodson in February 2007, focusing primarily on her headaches, pain in her arm and neck and to a lesser extent, her chest. On 16 March 2007, the visit following Ms Webber’s trip to Adelaide, Ms Dodson’s records were that while in Adelaide, Ms Webber caught a virus and had headaches and back pain for two weeks. However, the massage improved her headache. The following report on 7 April 2007 reported Ms Webber as feeling ‘good’ because she had a few weeks off work. However, in the three remaining visits in April 2007, she is back at work and there are recordings of tightness in the neck, thumbs and spine, and the need for work on her arms. In early May the report was that her ‘chest, arms, thumbs and back of neck feel sore’, and there was restricted movement of her shoulders. By mid May 2007, the record is ‘shooting pain in forearms’ but ‘no shooting pain in neck. Has been back at work so probably repetitive strain again’. The records state ‘No headache’. In the first part of June 2007, the clinical notes refer to Ms Webber having a throat infection and being tired, and her neck, chest and arms being stiff but with no pain. In particular there is a note that her ‘neck and arms‘ are not sore anymore.
35. The report of Mr Budd Chapple, Pilates and movement trainer, records that Ms Webber had an increase in keyboarding in October to November 2006. His records show reported ‘soreness in hands & headaches’, pain in the fingers especially the thumbs, wrists and elbows, headaches and poor posture. The next entry for 15 February 2007 recorded Ms Webber being back at work, ‘no headache’. However, by 20 February 2007, Ms Webber had reported a return of her headaches for two days of the intervening week. Thereafter there is a reference to ‘pain and stiffness yesterday’ at the next visit on 18 April 2007, to some neck soreness in early May 2007, and some soreness of her arms on 14 May 2007. The final records of two visits in June 2007, he noted illness from a bacterial infection only.
36. The Tribunal had the clinical records from 8 January 2008 to 4 September 2008 of Dr Lu Li Xiao, a Chinese medicine practitioner and acupuncturist, who treated Ms Webber. They record treatment for upper limbs and headache which produced short-term relief. The record for 28 July 2008 notes ‘shoulder much better since finished work. Stress level dropped. Reduced forearm usage from computer – home’. A month later on 20 August 2008, the record showed ‘Shoulder upper back and arms overuse syndrome has improved since performing acupuncture treatment and skin needle’. The records on 4 September 2008 state ‘[since] reduced workload … all injury area has improved. However, when doing enough gardening or exercise still can feel upper back, shoulder tight and some … pain’.
Other evidence
37. Ms Jo Williams-Frew, Ms Webber's case manager and the senior human resources consultant for the Department who was responsible for the rehabilitation of work injuries, in a Minute to Comcare on 28 June 2007 disputed Ms Webber’s claim of excessive keying and word processing. In her view, Ms Webber, in her previous work, had not been used to doing keyboard work since she had an assistant to do those tasks for her. In an undated statement, Ms Williams-Frew cited Ms Blewett’s statement that Ms Webber’s work was not excessive and her output fell below what could be expected of an ‘experienced EL2'.
38. Ms Teena Blewett, currently an SES Band 1, the Department, was Ms Webber's immediate supervisor from October 2006 to 24 August 2007. She denied that Ms Webber had undertaken an excessive amount of keyboarding work and said 'her work program has been minimal and her level of production lower than ... would be expected of a high performing experienced EL2'. Ms Blewett said between June and 30 October 2006, she was seated in the same pod of workstations as Ms Webber and could see her, but she conceded that she did not have Ms Webber in her line of sight when she became branch head and moved into an office. She said Ms Webber’s work day usually commenced between 9.00am and 10.00am and finished at approximately 5.30pm or 6.00pm. In her opinion, Ms Webber worked at a slower pace than other members of the team. Her estimate was that Ms Webber's tasks during October to November 2006 involved no more than 50 per cent keyboard work. She also said Ms Webber’s work pace was slow and steady and she did not seem to have the high pressure work projects of others in the branch. She also said Ms Webber took frequent breaks.
39. Ms Blewett also said she did not see Ms Webber produce typed documents more than two pages in length and the majority of work she was doing involved coordination of others’ work rather than Ms Webber authoring the work. She said she had signed a Task Analysis Report Form for Ms Webber on 9 August 2007 which allocated 20 per cent of time to liaison work and attending meetings, 20 per cent to research, reading and conceptual analysis, 10 per cent to emails, 10 per cent to team meetings and workplace discussions, and 40 per cent to preparing briefings and comments on policy issues, some of which was discussion, editing and follow up work.
40. Ms Blewett said Ms Webber did not succeed in a request for an improved performance report and hence a salary increase in November 2006 which may have led Ms Webber to be dissatisfied. Ms Blewett also said she was not aware that Ms Webber had present or long-term health problems until January 2007 when Ms Webber told her she was having tests done for her headaches and pains in her arms and her doctor had advised her to take sick leave for the next fortnight. Ms Blewett's evidence was that she asked Ms Webber if the conditions were work-related and Ms Webber had said 'No'.
41. Mr Craig Webber, Ms Webber's husband, in a statement of 4 November 2009 confirmed that Ms Webber suffered from chronic fatigue syndrome between 1990 and 1997. He said that by 2000 she had improved to near normal functioning. He also affirmed that the symptoms Ms Webber experienced of localised stiffness and pain in her shoulders, upper arms, neck and head in late 2006 were different from those she had earlier suffered due to chronic fatigue syndrome. He said these symptoms got better when she was not at work, but returned after any prolonged period in the workplace.
42. Mr Pieter Schoots, the Business Manager for Community Recovery in Centrelink, said in a statement dated 18 September 2009 that he was a key contact in Centrelink of Ms Webber while she was working on the pandemic program. He said 'everyone involved in this work had an existing, heavy workload in addition to the pandemic project' which he assumed included Ms Webber. He said 'we all worked long hours that would not normally be considered appropriate from an Occupational, Health & Safety perspective'. He confirmed the accuracy of Ms Webber's Compiled Work Diary for October and November 2006 and that the Department, as the coordinating agency, was to collate and to ‘massage’ for clearance the material provided to the Department by the five service delivery agencies. Because the pandemic matter was a ‘hot topic’ it was Cabinet-in-Confidence material involving tight timeframes and inter-departmental committees to meet Cabinet and international obligations. He said in order to get the material to the Secretary of the Department by the end of November, they were working at a ‘frenetic pace’ involving long hours for the final stage. He said the amount of editing done by the Department was a source of frustration to some of the delivery agencies and this contributed to the workload.
43. Mr Colin Nelson, a Department of Health and Ageing employee, said in his statement of 16 September 2009 that he had assisted Ms Webber in the Department during the completion of the pandemic prevention project between 15 October 2006 and 27 October 2006. He said the work mostly involved coordination of material but the timeframes were tight and pandemic prevention was 'a hot issue in late 2006 and the work was therefore very demanding'. He, too, confirmed the accuracy of Ms Webber's 'Summary of Pandemic Computer Related Tasks - October and November 2006’, as well as her 'Compiled Work Diary for October and November 2006'. He gave evidence that his work mostly involved computer-based work typing up different papers, and revising other documents which occupied him more than 50 per cent of the day. He said the branch was always regarded as ‘extremely busy’ and this involved a lot of computer-based work. He confirmed that documents he described as ‘backgrounders’ could amount to 20-30 pages. He said Ms Webber produced these longer documents and he could not say whether she typed or simply collated the content.
44. Mr Jeff Popple’s statement, dated 8 December 2008, said that the pandemic work did not constitute a full-time position, was not consistently at the EL2 level and was not intensive. He also said that having supervised Ms Webber during the period August to December 2006, her work did not constitute an excessive amount of keying. Most of the work was coordinating and collating material from the five Agencies associated with the Department. He believed Ms Webber had a less demanding workload than others at the EL2 level in the Budget Strategy Branch. He did not accept as accurate the figures shown in Ms Webber’s Compiled Work Diary. In particular he said the Diary did not include sufficient time for meetings which he estimated at 5 hours a week, rather than the one to three hours a week allocated by Ms Webber. In his evidence at the hearing he said that the Department was a relatively small agency at the relevant time with about 100 employees. The policy work in which Ms Webber was engaged involved providing briefing notes for the Secretary and the Minister for Senate Committee inquiries, ‘Ministerials’, and responses to possible questions in the Parliament, as well as the occasional brief.
45. Ms Tanya Dannock, an EL2 in the Department of Families, Housing, Community Services and Indigenous Affairs, was a colleague of Ms Webber from June 2006 to May 2007. In her statement dated 24 November 2008, she said she was not in a position to comment on Ms Webber’s workload, but she was aware that the pandemic work was a ‘hot topic’. However she said she did not recall Ms Webber complaining about the pressure or quantity of work, or about pain or discomfort during the period October to November 2006.
46. Ms Susan Hanson, currently with the Defence Signals Directorate, Department of Defence, worked for the Department from March 2005 till December 2006. In her statement, dated 24 November 2008, she said she was responsible, inter alia, for the development of a Business Continuity Plan for the Department and, in particular, the National Action Plan for Human Influenza Pandemic. She said both these roles took about 25 per cent of her time. She handed over the pandemic work to Ms Webber in the period June to August 2006. In her view, the work on the pandemic project peaked in May-June 2006 and thereafter began to decline. She said she did not consider the follow-up work for the end of November 2006 deadline to present a coordinated department plan for the National Action Plan was as high as for her June 2006 deadline. She also said it was unlikely that Ms Webber would have been required to spend the hours listed as keyboard work by Ms Webber in her Compiled Work Diary.
47. Prior to June 2006 Ms Hanson said she would spend about 1.5 hours typing and from June 2006 to December 2006 about 1 hour typing. She agreed there was a lot of meeting and telephone work, reading and analysis but not typing work. She also said she observed Ms Webber taking frequent breaks. She acknowledged that the reporting of the pandemic work was directly to the First Assistant Secretary and to Mr Leeper, rather than to the Branch head.
Consideration
Diagnosis of Ms Webber’s condition
48. A preliminary issue is the correct diagnosis of Ms Webber’s condition. Ms Webber contracted chronic fatigue syndrome in 1990 but since 1997, she said she has felt no major effects of that condition and managed it successfully. In 2005 when Ms Webber joined the Department she said she was feeling the best she had since 1990. Her treatment involved among other things, fortnightly massages. The Tribunal notes, however, that in January 2007 Ms Webber doubled the quantity of massages (to four) and in February 2007 she had nine visits to her masseuse, indicating an unusual need for treatment. This increase is due either to her chronic fatigue symptoms being out of control, or to the emergence of some new condition.
49. A difficulty in establishing a diagnosis of Ms Webber’s condition is that the majority of medical experts (Associate Professor White, Associate Professor Barnsley, and Dr Navin) did not provide initial reports until 2008. By that time Ms Webber’s symptoms from the end of 2006 and early 2007 were in abeyance. Even Dr Le Leu’s report on 14 August 2007 was made some six months after Ms Webber first complained about the onset of pain. Ms Webber’s treating practitioner, Dr Thew, and her remedial masseuse, Ms Dodson, are the only practitioners who have treated her throughout. This has made it difficult for the medical experts to give an opinion on her condition as at the end of 2006 or early 2007. Another difficulty was that the symptoms and treatment for Ms Webber’s chronic fatigue syndrome appeared to be similar to that for the regional pain syndrome, making it harder to identify the condition from which she was suffering at a particular time.
50. Dr Thew diagnosed chronic overuse problem in January 2007, and described the condition as tenosynovitis or an irritation of fibromyalgia symptoms. Ms Dodson provided a diagnosis of thoracic outlet syndrome. Associate Professor White diagnosed chronic regional overuse syndrome and specifically rejected fibromyalgia or an aggravation of chronic fatigue syndrome. Associate Professor Barnsley rejected tenosynovitis and fibromyalgia and diagnosed non-specific regional pain. Dr Navin acknowledged Ms Webber’s chronic pain but said the tightness and restriction in the muscles of her neck was due to muscle contraction from a long-standing postural problem and this was not related to work. Dr Le Leu was prepared to concede that Ms Webber may have had an overuse condition in 2006 but said there were no longer symptoms of that or any condition.
51. On the basis of this evidence, the Tribunal finds that the best description of Ms Webber’s symptoms is chronic regional pain. The finding acknowledges that the medical specialists could find no physical symptoms which can account for Ms Webber’s continuing pain. The diagnosis is the view of an expert in neuro-physiology, Associate Professor White, a consultant rheumatologist, Associate Professor Barnsley, and an occupational physician, Dr Le Leu. While the Tribunal acknowledges that Ms Webber’s treating practitioner has expertise in sports medicine, and has a detailed understanding of Ms Webber’s conditions, when questioned at the hearing, Dr Thew said she preferred to rely on her clinical judgment, rather than recognised tests for the diagnosis of conditions of tenosynovitis and fibromyalgia. This view has led the Tribunal to rely more heavily on the views of the specialists in these areas. Dr Navin did note that Ms Webber suffered chronic pain but made no diagnosis apart from saying the symptoms were due to long-standing postural problems.
52. The next issue is whether the condition first suffered in late 2006 was an aggravation of an existing condition of Ms Webber. Ms Webber said in evidence that the symptoms she was experiencing in 2006 were different from those she was familiar with, being more intense pain, rather than a generalised ache and stiffness. She said that she had concerns that she might be suffering from arthritis, a view which led Dr Thew to request blood tests in early 2007. Dr Thew confirmed this view saying that discomfort from chronic fatigue syndrome was more generalised and in January 2007 she appreciated that Ms Webber’s then symptoms were much more specific. At the same time Dr Thew concluded that her overuse problem was an ‘additional or triggering recurrence of the pain and fatigue problem that she has suffered for years’.
53. Dr Le Leu not only denied she had any condition when he saw her in August 2007, but also that it was an aggravation of a pre-existing condition. Dr Navin concluded that her condition was probably related to a longstanding postural malfunction, but did concede that her symptoms from late 2006 did have a ‘link related to the demands of her scope of work’ and noted that Ms Webber attributed the aggravation of her condition to ‘to her being required, due to management inaction, to carry out duties which required more than 50% keyboard work’. Associate Professor Barnsley said he suspected there was a contribution from her chronic fatigue syndrome to her current symptoms. Associate Professor White denied that Ms Webber’s condition was an aggravation of her chronic fatigue syndrome. Ms Debra Dodson assessed the condition as due to computer work.
54. The medical evidence as to aggravation is equivocal. Dr Le Leu and Associate Professor White denied that her later condition was an aggravation of chronic fatigue syndrome or fibromyalgia, and Dr Navin concluded that she suffered a work-related exacerbation from her pre-existing postural condition. Only Dr Thew was strongly of the view that Ms Webber’s symptoms in late 2006 to early 2007 were an aggravation of her chronic fatigue syndrome or her fibromyalgia. Associate Professor Barnsley said he suspected a contribution from her chronic fatigue syndrome but did not firmly support the connection. In the face of these divergent views and since it has found that Ms Webber suffered from regional pain syndrome at the relevant time so that it is strictly unnecessary to reach a conclusion on this issue, the Tribunal makes no findings on aggravation.
Has Ms Webber suffered an ‘injury’ for the purposes of section 14 of the Act?
55. As it has been found that Ms Webber does not suffer from a physiological condition, for her condition to be an 'injury' the condition from which she suffers must be a 'disease', namely an 'ailment'.[1] As the condition arose before 13 April 2007, the Act as in force at that time must be relied on. An ‘ailment’ at that time meant ‘any … mental ailment, disorder, defect of morbid condition (whether of sudden onset or gradual development)’[2]. Liability will only arise for an ‘injury’ if ‘the injury results in death, incapacity for work, or impairment’.[3] ‘Incapacity for work’ is defined in section 4(9) of the Act. An ‘impairment’ means ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function’.[4]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1).
[2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1).
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14(1).
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1).
56. An ‘ailment’ is defined in broad terms[5] which are capable of applying to pain disorder. The condition, pain disorder, is recognised as a disorder in the Diagnostic and Statistical Manual of Mental Disorders.[6] The diagnostic criteria for pain disorder include pain in one or more anatomical sites of sufficient severity to warrant clinical attention; the pain causes clinically significant distress or impairment in social, occupational, or other areas of functioning; psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain; the symptoms are not feigned; and the pain is not better accounted for by other DSM IV conditions.[7]
[5] Re Vo and Comcare [2005] AATA 773 at [54].
[6] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (revised 2000) 498.
[7] Id at 503.
57. On the evidence, Ms Webber’s condition includes pain in her upper limbs and headaches of sufficient severity to warrant clinical attention. Despite being inured to pain from her long-standing chronic fatigue syndrome, Ms Webber was sufficiently discomforted by the condition which emerged in late 2006 to early 2007 to increase her massages from fortnightly to once or twice a week. She also visited her general practitioner with pain in her back, neck and arms four times in January 2007 and nine times in February 2007, significantly more frequently than normal. These steps indicate that the pain caused clinically significant distress.
58. There is some indication that the pain may have had some connection with psychological factors. There is reference to her stress associated with meeting tight deadlines, and her conflict with her supervisor between October and December 2006. In addition there is evidence of Ms Webber’s distress at not being permitted to work under a different supervisor and in a position with less keyboarding.
59. Finally, there is no suggestion in the medical evidence that Ms Webber is exaggerating her symptoms of pain, nor have other DSM IV conditions been identified. The Tribunal finds, accordingly that Ms Webber’s chronic pain disorder is an ’ailment‘ and hence it is a ‘disease’. In turn that means Ms Webber suffered an ‘injury’ provided the ailment is contributed to, to a material degree, by Ms Webber’s employment.[8]
Whether the ‘disease’ was suffered prior to 13 April 2007?
[8] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘disease’.
60. The date of the injury must be identified. Counsel for Ms Webber contended there were options, namely, the 31 January 2007 when Dr Thew diagnosed tenosynovitis, the 14 January 2007 when Ms Webber first consulted Dr Thew about her increasing pain, 22 January 2007 when Dr Thew recommended two weeks leave, or the 29 November 2006 when she first experienced the increase in pain. Section 7(4) of the Act provides that the date of injury, being a disease, is the earlier of the dates when the person first sought medical treatment for the disease or aggravation, or the disease or aggravation first resulted in the incapacity for work or impairment of the person.
61. ‘Impairment’ is defined as ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or bodily system’.[9] In Re Halliday and Comcare[10] the Tribunal found:
[T]here will be an impairment of a part of the body or a bodily system or function if it has been damaged in the sense that its usefulness or value has been diminished or if it malfunctions in the sense that it fails to perform normally or properly.[11]
[9] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘impairment’.
[10] Re Halliday and Comcare (1994) 19 AAR 431.
[11] Id at [48].
62. Ms Webber said she was aware that her pain levels had increased by the end of 2006 and she was developing headaches. So although her awareness was of some discomfort to her head and upper limbs, she does not indicate that her head, arms, shoulders, neck and hands were malfunctioning to such an extent as to be described as not ‘performing normally or properly’ at that time. As she said, ‘I just thought I needed a holiday’.
63. So the date of injury must be when she first sought medical treatment for the disease. She apparently visited Dr Thew on 14 January 2007 but the Tribunal has little evidence of that visit. However, at the visit of 22 January 2007 Dr Thew was sufficiently concerned about her condition to advise Ms Webber to take two week’s sick leave and to order blood tests. So, although there is no diagnosis in the medical certificate of Dr Thew of 22 January 2007, since that was the date on which Ms Webber had sought treatment for the pain symptoms which are the subject of this claim and Ms Webber’s workers’ compensation claim also identified 22 January 2007 as the relevant date, the Tribunal finds that the date of injury is 22 January 2007. As that date occurs prior to the commencement of amendments to relevant sections of the Act on 14 April 2007 these amended provisions will not be applied to Ms Webber’s application.
Whether the ‘disease’ was contributed to in a material degree by Ms Webber’s employment?
64. Ms Webber’s argument was that during October to November 2006 the amount of computer-related work she was required to undertake involved between 50 and 80 per cent of her time and, she claimed, longer than usual working hours. This work had to be completed according to strict timelines which she found stressful. As a consequence she developed pain and stiffness in her neck, upper arms, and wrists and swelling of her fingers. Her perception is that the symptoms she developed at that time were solely due to requirements in her workplace.
65. Comcare maintained that the condition Ms Webber suffered was caused by
… multiple contributing factors which included stress, the Applicant’s underlying chronic fatigue syndrome (which had previously manifested in musculoskeletal symptoms) and the Applicant’s pre-existing psychological problems which manifested to increase her levels of stress.
66. As a consequence, Comcare claimed:
…any contribution from the Applicant’s employment to the pain that occurred on or before 21 February 2007 was de minimis, as factors external to the applicant’s employment materially contributed to her complaint.
67. The test for ‘material contribution’ in Comcare v Sahu-Khan[12] requires that the connection be more than de minimis. While noting the dangers identified by Finn J in Sahu-Khan in paraphrasing legislative expressions, his judgment is authority for the principle that a ‘material contribution’ requires at least that the contribution be ‘in a material degree, substantially, considerably’,[13] after taking into account ‘all relevant contributing factors’.[14]
[12] Comcare v Sahu-Khan (2007) 156 FCR 536.
[13] Id at [15].
[14] Id at [16].
68. The cases also establish that the contribution may be a matter of perception. As von Doussa J said in Weigand v Comcare Australia:[15]
… it was open on the evidence for the tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
[15] Weigand v Comcare [2002] 72 ALD 795 at [31]. Followed by Deputy President Jarvis in Re Albanese and Comcare [2004] AATA 768 at [68].
69. As Weigand indicates, the ‘incident or state of affairs’ must have some grounding in fact. As von Doussa J said: ‘A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.’[16] In combination, these principles mean that if someone holds a perception, even if irrationally based, that may still be compensable if it is founded in fact.
[16] Id at [24].
70. In reaching its conclusion on this issue the Tribunal has taken account of two sources of information: the medical evidence, and the evidence of Ms Webber’s workload relative to Ms Webber’s pre-existing conditions and her perceptions of her workplace at the time.
Medical evidence
71. The medical evidence of the level of workplace involvement in Ms Webber’s condition is again equivocal. Dr Thew diagnosed Ms Webber’s condition as a workplace overuse problem which had triggered her underlying non-work-related conditions of either chronic fatigue syndrome or fibromyalgia. Ms Dodson agreed. Dr Le Leu found no condition in August 2007, although he conceded a possible ‘overuse condition relating to increased keyboarding in late 2006’. Dr Navin concluded her symptoms resulted from an exacerbation of her musculoskeletal conditions but did have ‘a link related to the demands of her scope of work’. He did not attribute the level of that attribution.
72. Associate Professor Barnsley reported ‘a possible relationship between her employment and her current symptoms’ in association with other stressors at work such as the difficult relationship with her supervisor and working to tight deadlines. Nonetheless, he concluded in his April 2008 report that the work component ‘contributed to her condition to a minor and insignificant degree’ and in his January 2009 report, that the work ‘was not the principal cause of her current problems’. At the same time, in his later report in January 2009, he said it would ‘be prudent for her to avoid prolonged periods of typing’ apparently conceding that keyboarding was in part responsible for the flare-up of her conditions. In effect, his conclusion was that her normal level of typing would not have an impact that was ‘material’ but any increased level of keyboarding, particularly if accompanied by other stressors in the workplace, could make a contribution that was significant.
73. Associate Professor White found that the workplace did contribute significantly to her conditions and was the primary cause of her symptoms. Like Associate Professor Barnsley, however, he acknowledged that if Ms Webber’s typing time was only for a small (he nominated 25 per cent) amount of her time, this was unlikely to lead to chronic regional overuse syndrome whereas if typing was for a larger portion (up to 50 per cent) of the time, the reverse would be the case. He also conceded that the level of typing which would trigger the condition did depend on the individual involved.
74. The Tribunal finds that on balance the medical evidence establishes that Ms Webber’s workplace did play a part in the development of her chronic pain syndrome, albeit for a limited period. That contribution was due to a mixture of stress from meeting deadlines, additional computer-related work including keyboarding, and a level of disagreement with a supervisor. The fact that Ms Webber’s symptoms have ceased since she left the workplace, and reduced significantly during periods when Ms Webber took leave, as occurred, over the Christmas 2006 break, and subsequently during Ms Webber’s lengthy periods of leave during 2007 and 2008, reinforce the finding of a causal connection with her workplace.
Intensity and type of work
75. At the outset the Tribunal notes that there was a shift in the nature of the evidence on this issue. Initially, the discussion related principally to Ms Webber’s keyboarding and much of the evidence refers solely to keying-in work. It became clear during the hearing, however, that Ms Webber and Dr Thew considered her conditions related to the range of computer-related tasks including editing, by hand or on the keyboard, and research and reading tasks which involved sitting at a desk and holding the same position for an extended period of time. The argument was that tightness in the trapezius muscles is a condition resulting from such prolonged periods involving little gross movement. The Tribunal accepts this view and has taken it into account in assessing the evidence of those whose evidence was focused solely on actual keyboarding work.
76. Ms Webber’s evidence was that during October to November 2006 she was working excessive hours and doing more intensive computer-related tasks than normal leading to the deadline at the end of November for completion of the government’s pandemic strategy. Her claim was supported by the evidence of Mr Schoots and Ms Nelson, but denied by Ms Blewett, Mr Popple and Ms Hanson.
77. The Tribunal’s examination of Ms Webber’ work diaries notes that in some cases the hours worked were estimates which were not contemporaneous. It is also not clear whether they included or excluded lunch breaks. On average, however, the Tribunal concludes that the maximum hours worked per week during October/November 2006 was 8 hours a day, while for the most part the hours were between 7.2 and 7.6 hours a week. As Ms Webber herself conceded, this is not an excessive length of day for someone at her level, particularly during high workload periods.
78. Although Mr Shoots and Mr Nelson were supportive of Ms Webber’s claim they were not working alongside or aware of her actual workload. Mr Popple was also in a different location of the Department; and Ms Hanson was no longer in the Department at the relevant time so they too could not have perceived Ms Webber’s time at her workstation. The same is true for Ms Blewett even when working in the same pod of workstations since she could not see Ms Webber unless she was standing, and Ms Webber’s workstation was not visible to her at all when she became branch head. The evidence of these witnesses as to the actual hours worked by Ms Webber is, accordingly, not especially probative.
79. In any event, the total hours worked does not indicate the intensity of that work. A factor which reduced the level of intensity was that Ms Webber, according to the evidence, took regular breaks. Weighed against this factor is that Ms Webber, prior to her taking up the position in the Department, had not been used to doing tasks involving much keyboard or computer-related time. Given her musculoskeletal problems arising from her chronic fatigue syndrome, and other postural issues, Ms Webber was more likely to be adversely affected than others without these conditions from any increase in these types of work.
80. Ms Webber’s evidence was that she spent on average 65 per cent of her time on computer related tasks during October/November 2006 and up to 82 per cent for a period of six weeks of that time. However, there was also evidence which the Tribunal accepts that the longest document produced during this period was between 20-30 pages and much of the work entailed by the production of that document was compiling others’ work, editing, and synthesising styles and formats, rather than original keying in of material. The evidence indicated that most documents produced by Ms Webber were no more than one or two pages in length, although there were a minority of longer documents. Even taking into account the broader ‘computer-related task’ view of her activities, the Tribunal finds that Ms Webber’s estimates were an inflation of her actual workload and in turn of the intensity of her workload at that time.
81. Nonetheless, even Ms Blewett conceded that during October to November 2006, Ms Webber’s typing work alone could have reached up to 50 per cent of her time. Associate Professor White found that her regional pain syndrome could develop if Ms Webber was involved in keyboard work for more than 25 per cent of the time and Associate Professor Barnsley reported that if Ms Webber was doing no more typing than previously, with rest breaks, her employment would have made no material difference to her condition. The implication from this finding is that if she was doing more than ‘normal’ amounts of typing – and it is clear from the evidence that this was the case – the workplace could have made a material contribution to her condition. Even discounting Ms Webber’s estimates, the Tribunal accepts that Ms Webber was probably spending at least 50 per cent of her time in computer-related tasks at that time.
82. Ms Webber’s chronic regional pain condition emerged in the two months prior to Christmas 2007 and caused her to seek additional medical attention and treatment in January 2007, immediately after she had returned from leave. No cause for the development of the regional pain disorder other than the pressure of work in that period has been identified. The workload may not have been as intense or demanding as Ms Webber estimated but objectively it exceeded the threshold which according to Associate Professor White, and possibly Associate Professor Barnsley too, would have considered sufficient to trigger her regional pain syndrome. Moreover, it is a truism that the level or intensity of work which can be tolerated without adverse effects depends on each individual and in Ms Webber’s case, her long-standing chronic fatigue syndrome, postural problems, and her lack of experience with a heavier computer-related workload, made her more vulnerable than others free of such conditions. There is also evidence from the clinical records that Ms Webber needed additional levels of massage, and Pilates in the early months of 2007, indicating an abnormal level of musculoskeletal discomfort.
83. On balance the Tribunal finds on the evidence that commencing in October 2006 Ms Webber developed symptoms which were due to a combination of factors in the workplace, including her failure to achieve a change of supervisor, her perception of her workload as being heavy, and the actual amount of computer-related work entailed by the pandemic strategy, additional to her other work. Others may not have reacted in the same manner as Ms Webber but for her these contributed to her stress. They were employment-related factors and for her, the effect of these conditions in combination was ‘material’.
84. How long her condition lasted is not easy to determine. Ms Webber was not at work for 5 months of 2007, either for medical, family or other personal reasons. Further, for 4 months while she was at work in 2007, she was on a graduated return to work program of either three or four hours of work over three days, that is between nine and twelve hours a week. Since keying was limited to 50 per cent of the limited hours she worked, it is apparent, that her keyboard work during these periods could not have met the minimum percentage of a full-time workload estimated by Associate Professor White, or the more than ‘normal’ amount of typing indicated by Associate Professor Barnsley, required to cause regional pain syndrome.
85. Ms Webber’s absences from work or reduced hours of work during 2007 meant that the impact of the more intense workload which commenced in October 2006 abated. Nor was there evidence at the Tribunal of any comparable period of pressure during 2007 or the first half of 2008 to that faced by Ms Webber in October to November 2006. Although Ms Webber was again working full time from mid October to mid December 2007 and reported a recurrence of symptoms which she attributed to computer-related work, there is no diagnosis of regional pain syndrome at that time, nor of any increased need for massage or other therapies. Thereafter, until she resigned, Ms Webber was on reduced hours when she could not have been doing computer-related work to the minimum intensity required to develop the condition. The result is that Ms Webber’s symptoms decline and then cease. There is evidence of this in the reports of Ms Dodson, her masseuse, as well as Mr Chapple, her Pilates trainer, and her Chinese medicine practitioner, Dr Lu Li Xiao.
86. The date at which her symptoms abate is not easy to estimate. During February 2007 Ms Webber visited her masseuse 9 times. She was clearly suffering more acute symptoms in that month. Thereafter until late June 2007, Ms Webber is on modified duties except for short periods of leave. By 14 August 2007, Dr Le Leu found Ms Webber to be symptom-free. Some time between the end of March and the middle of August 2007 Ms Webber’s symptoms dissipated. In the absence of more precise evidence, the Tribunal is not able to pinpoint an earlier date than 14 August 2007 for the cessation of her symptoms. In these circumstances, the Tribunal finds that any material contribution to Ms Webber’s condition due to her employment had ceased, at least by 14 August 2007. That means that any contribution of Ms Webber’s employment to her conditions after that date in 2007, up to and including her resignation from June 2008, is not material.
Conclusion
87. Comcare is liable to compensate Ms Webber for an injury, namely, a disease, regional pain syndrome in accordance with section 14 of the Act but only, for the period 1 October 2006 to 14 August 2007.
88. The usual orders as to costs apply.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.
Signed: ...........................[sgd]..................
C. Kocak, AssociateDate/s of Hearing 15 March - 17 March 2010
Date of Decision 11 May 2010
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Ms L. Walker
Solicitor for the Respondent Dibbs Barker
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