Weedon and Comcare (Compensation)

[2015] AATA 931

Weedon and Comcare (Compensation) [2015] AATA 931(2 December 2015)

Division	GENERAL DIVISION
File Number	2014/5478
Re	Hilary Weedon
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	2 December 2015
Place	Brisbane

The decision under review is affirmed.

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Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – whether entitled to compensation – hand and wrist conditions – clerical duties - whether significantly contributed to by employment – insufficient evidence to establish significant contribution – other factors present – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Wiegand V Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

2 December 2015

INTRODUCTION

1. The applicant seeks review of a decision of the respondent dated 10 October 2014 which affirmed a determination dated 25 June 2014 that the respondent was not liable to pay compensation to the applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the “Act”) for a condition of “synovitis and tenosynovitis (hand and wrist)(bilateral)”.[1]

   [1] Exhibit A, p 85-92.

   CLAIM OF WORKPLACE INJURY

2. The claim form of the applicant dated 21 March 2014 contains a claim for “flexor tendons synovitis” which was alleged to be caused by “continual typing”. The applicant claimed that it was on 11 October 2013 when she was first injured or first noticed that she was ill. The claim form indicates that she first sought medical treatment on 11 March 2014 at the Myall Medical Centre. The applicant answered “no” in response to the question “have you ever had a previous similar symptom, injury or illness work-related or otherwise”.[2]

   [2] Exhibit A, p 15-22.

3. The statement of the applicant outlined her claims that her work contributed to her conditions. She remarked: “My job required repetitive data entry on a computer. The repetitive hand and wrist movements required to operate the mouse caused swelling in my fingers, feelings of pins and needles, shaking and aching in both of my hands”.[3]

   [3] Exhibit B, p 1.

   LEGISLATION

4. Section 14 of the Act provides that the respondent is liable to pay the applicant compensation in respect of an injury suffered by her if it results in death, incapacity or impairment.

5. Under s 5A(1) of the Act: "injury" means:

   (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;

6. Under s 5B(1) of the Act “disease” means:

   (a) an ailment suffered by an employee; or

   (b)an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

7. Subsection 5B(2) of the Act provides:

   In determining whether an ailment or aggravation was

   contributed to, to a significant degree, by an employee's employment

   by the Commonwealth or a licensee, the following matters may be

   taken into account:

   (a) the duration of the employment;

   (b)the nature of, and particular tasks involved in, the

   employment;

   (c)any predisposition of the employee to the ailment or

   aggravation;

   (d)any activities of the employee not related to the

   employment;

   (e)any other matters affecting the employee's health.

   This subsection does not limit the matters that may be taken into account.

8. The term “significant degree” is defined in subsection 5B(3)of the Act to mean a degree that is substantially more than material.

   OULINE OF SPECIALIST MEDICAL EVIDENCE

9. The applicant has been examined by three specialists. Two of the specialists, Dr Hazelton and Dr Frederiksen were called to give evidence.

10. Dr David Douglas, Occupational Physician, in his report dated 18 June 2014 has opined that the hand/wrist condition of the applicant was due to synovitis of the distal radio/ulnar joint which was caused by past trauma or early signs of arthritis.[4] Dr Douglas has stated that he was of this opinion because the applicant continued to have symptoms even after she had ceased undertaking the work duties that she had alleged had contributed to the condition. Dr Douglas in his report noted that the pain symptoms of the applicant started at the thenar eminence and the base of the right thumb and throughout the right wrist.[5] Dr Hazelton considered that the pain on the thumb could not be linked with ulnar variance.[6]

    [4] Exhibit A, p 81.

    [5] Exhibit A, p 78.

    [6] Transcript of proceedings, p 39, lines [12]-[15].

11. Both Dr Hazelton and Dr Frederiksen accepted that the applicant had ulnar wrist variance and hamato-lunate impaction syndrome. There was agreement from Dr Hazelton and Dr Frederiksen that the applicant has a type 2 lunate which is found in 50-70% of wrists. Dr Hazelton indicated that this has resulted in osteoarthritis affecting the applicant’s hamate.

12. Dr Frederiksen, gave evidence by telephone and was called by the applicant. In 2014 Dr Frederiksen performed a number of surgical procedures on the applicant. On 18 July 2014 he performed a right wrist arthroscopy, debridement and synovectomy as well as a LACS injection to the right middle finger flexor sheath and thumb CMC joint.[7] On 13 November 2014 he performed a right wrist ulnar shortening osteotomy.[8]

    [7] Exhibit E, Operation Records of Dr Frederiksen.

    [8] Exhibit E, Operation Records of Dr Frederiksen.

13. Dr Frederiksen in his report of 23 January 2015 has provided a diagnosis of the left and right wrist conditions of the applicant. In his report Dr Frederiksen remarked that the applicant had right wrist synovitis at radiocarpal joints and mid-carpal joints with MRI evidence of synovitis at the distal radioulnar joint, triangular fibrocartilage degenerative tears with grade II to III cartilage changes at lunate and a focal full thickness cartilage loss proximal radial corner of hamate with type II lunate. Dr Frederiksen also gave his opinion that in the left wrist condition of the applicant involved minor degenerative changes and a triangular fibrocartilage tear as well as a 6mm dorsal ganglion.

14. In his report Dr Frederiksen gave his opinion that at the right wrist the repetitive typing, keyboard and mouse activities would have significantly contributed to the synovitis, as well as mild degenerative change including TFCC tear and corresponding lunate changes, consistent with ulnocarpal impingement. In particular, repetitive ulnar deviation motion when typing or when reaching for a mouse would have been a significant contributing factor to this condition. Dr Frederiksen also gave his opinion that the degenerative changes in the left wrist were caused by the work activities of the applicant.

15. Dr Frederiksen was firmly of the opinion that repetitive typing by the applicant involved ulnar variance. Dr Frederiksen was unable to demonstrate how this was so as he gave evidence by telephone although he remarked that “you can’t really type effectively without deviating the wrist”.

16. Dr Hazelton, who gave evidence in person and was called by the respondent, remarked that on the modern computer keyboard the hands are held flat and there is virtually no wrist movement, either dorsiflexion, palmar flexion or ulnar deviation or radial deviation. Dr Hazelton also demonstrated that there was little or no ulnar variation in typing. Dr Hazleton in his initial report has mentioned that the applicant has a family history of haemochromatosis which condition he stated is associated with complications including arthritis, attached to both of his reports was the Ross study that he relied upon for his opinion.[9]  Dr Hazleton under cross-examination reiterated that the osteoarthritis condition of the applicant is most likely linked with her haemochromatosis condition. Dr Hazelton also confirmed under cross-examination that osteoarthritic change had been seen on arthroscopy.

    [9] Ross, J.M. et al (2003), Association of heterozygous hemochromatosis C282Y gene mutation with hand arthritis, Journal of Rheumatology, 30(1): 121-125. 

    CONSIDERATION

17. There is no contention that the claimed conditions of the applicant being “synovitis and tenosynovitis (hand and wrist)(bilateral)”[10] are inappropriate to describe the orthopaedic conditions of the applicant. I rely upon the comprehensive report of Dr Hazelton dated 10 February 2015 to find that the applicant has degeneration of the triangular fibrocartilage of both wrist joints as well as synovitis of the distal radioulnar joint of the wrist, most prominent in the right wrist and less marked in the left wrist with some associated bone marrow oedema.

    [10] Exhibit A, p 85-92.

18. The case that was advanced by the applicant was that from 2005 and particularly from 2010 her duties have included the repetitive use of a keyboard and mouse and those duties have contributed to aggravating the claimed conditions. The applicant has also quite properly acknowledged that “strenuous farm work” undertaken by the applicant could contribute to her conditions. However, the applicant contends that although there may be multiple contributing factors for the claimed conditions, the employment of the applicant contributed to the conditions to a significant degree. 

19. Dr Frederickson has referred to the ulnocarpal impingement with focal degenerative change at the proximal aspect of the lunate. Dr Frederickson also mentioned there is a degenerative tear of the central component of the TFCC secondary to ulnocarpal impingement.[11] Dr Frederiksen considered that ulnocarpal impingement (leading to progressive damage to the TFCC and lunate in the wrists) was caused by the pre-existing positive ulnar variance in both wrists. Dr Frederiksen was questioned about the fact that he did not take a specific history to examine whether the keyboard and mouse activities did in fact involve ulnar variation. Dr Frederiksen stated that he thought that the history of repetitive typing activity implies ulna variation. I cannot accept the opinion of Dr Frederiksen that ulnar variance significantly contributed to the condition of the applicant when his report does not outline any such specific history of ulnar variance when the applicant is typing.

    [11] Exhibit D, Report of Dr Frederiksen dated 11 June 2015, p 2.

20. Dr Frederiksen, in giving evidence, explained the nature of the Type II lunate in the right wrist of the applicant:

    In the type 2 version of that lunate, it has two articular surfaces with a ridge in-between and so that the middle row of bones cannot slide across the lunates but rather mechanically adapted more of selection extension rather than a sliding back 40 and forth. So, that potentially the hamate bone, which is the bone closest to the little finger, distally on that side of the wrist. So, that the hamate bone will come in contact with that ridge and that (indistinct) and that’s what – that then is termed hamate lunate impingement and that’s a little bit less common than the ulnocarpal impingement.[12]

    [12] Transcript of proceedings, p 26, lines [38]-[45].

21. Dr Frederiksen remarked that any repeated activity where it increases the mechanical factor of the two bones being knocked together accelerates the degenerative process. Dr Hazelton, who accepted that the applicant had a type II lunate, was of a different opinion to Dr Frederickson. Dr Hazelton referred to the 2002 study by Cerezal where it is stated that the repeated impingement and abrasion of the two bones occurs when the wrist is used in full ulna deviation.[13] That study also refers to the fact that ulnar deviation increases significantly with a full grip. While Dr Frederickson did not agree with this view, he did not refer to any literature that contradicted the Cerezal study. I rely upon the opinion of Dr Hazelton.

    [13] Cerezal, L. et al (2002), Imaging Findings in Ulnar-Wrist Impaction Syndromes, RG, 22(1), 105-121.

22. The report of Dr David Douglas, occupational physician, is a comprehensive report.  In his report he referred to the pain in the left hip and pain in the shoulders which the applicant asserts she has experienced since working in the Dalby office of her employer.[14] Dr Douglas reported:

    However, since about October 2013 she has also noticed aching in her right hand and also lesser but similar aching in her left hand.  She stated the aching is in the region of the right thenar eminence and the base of the right thumb and also throughout the right wrist. This pain then leads to a general aching sensation in her hand and lower distal forearm.[15]

    [14] Exhibit A, p 78.

    [15] Exhibit A, p 78.

23. Dr Douglas has concluded that the painful wrist condition is due to synovitis of the distal radio-ulnar joint most likely a result of past trauma or due to the early signs of arthritis.[16] Whilst Dr Douglas was not advised by the applicant of any such trauma, there is evidence of the applicant having had a hand injury on 13 August 2007 when her 5th finger was pushed by a door. The applicant then reported that she was “now having pain with writing and driving”.[17] It is apparent that the applicant has long experienced symptoms of having difficulty with her hands; in 2007 she was experiencing numbness of her hands.[18] There is evidence that in 2011 when she worked with cattle, her general practitioner recorded on two separate occasions that she worked without gloves and protective gear.[19] Dr Hazelton is of the opinion that it would require more strenuous activity than keyboard or mouse work to cause the symptoms complained of by the applicant.[20] Under cross-examination Dr Hazleton maintained his opinion that ulnar deviation without forceful movement does not contribute to the damage to cartilage.

    [16] Exhibit A, p 80.

    [17] Exhibit H, Medical Records, p 244.

    [18] Exhibit H, Medical Records, p 242.

    [19] Exhibit H, Medical Records, p 253.

    [20] Exhibit F, Report of Dr Hazelton dated 10 February 2015, p 15.

24. Dr Douglas and Dr Hazelton have given evidence of the predisposition of the applicant to arthritis or osteoarthritis because of her haemochromatosis condition. The applicant has asserted that her general practitioner never told her about this condition despite the fact that the records of a surgery consultation with her general practitioner of 17 February 2012 contain the notation “Mother carrier for haemochromatosis”.[21] There is evidence of the applicant being diagnosed with osteoarthritis in a number of joints such as the right pattelo-femoral joint in 2010 and the first metatarsophalangeal joint of the right foot in 2012.[22]

    [21] Exhibit H, Medical Records, p 254.

    [22] Exhibit G, Supplementary Report of Dr Hazelton dated 19 June 2015, p. 2.

25. In reviewing the evidence before me there is a record of the applicant having long-standing conditions of the hand and wrist. The applicant had a hand injury in 2007 which resulted in her reporting that she was “now having pain with writing and driving”.[23]  In 2010 the applicant informed her general practitioner that she had “painful stiff hands every morning” (4 November 2010).[24] In 2011 there is a report of “stiffness mainly wrists” (30 November 2011).[25] In 2013 the applicant informed her general practitioner that she had “bilateral hands stiff in the morning, then improve over the day” (20 November 2013),[26]  a few days after this entry the general practitioner also made an entry of “bilateral hand pain no improvement”.[27] I have concluded on the basis of these records that these conditions are long-standing conditions which the applicant experiences in the morning; these entries make no reference to the work of the applicant. In these circumstances I am unable to  find that her work contributed to a significant degree to the claimed conditions of the applicant. I am fortified in my opinion by the observation of Dr Douglas that the applicant continued to have symptoms even after she had ceased undertaking the work duties that she believes had contributed to the condition.[28]

    [23] Exhibit H, Medical Records, p.244.

    [24] Exhibit H, Medical Records, p 251.

    [25] Exhibit H, Medical Records, p 253.

    [26] Exhibit H, Medical Records, p 258.

    [27] Exhibit H, Medical Records, p 259.

    [28] Exhibit A, p 82.

26. There was considerable discussion about whether there was ulnar deviation in the work undertaken by the applicant. Dr Frederiksen contended that the computer work undertaken by the applicant involved ulnar deviation whereas Dr Hazelton did not concede that there was ulnar deviation. I am prepared to assume that there was some element of ulnar deviation. However, even if there was some element of ulnar deviation, Dr Hazelton in his evidence reiterated that repetitive ulnar deviation does not play a role in causing or accelerating damage by ulnar impaction or hamato lunate impaction unless there is pressure or force. I accept his evidence which was given in reliance on medical literature. I also consider, in reliance on the report of Dr Douglas, that any pain in the thumb cannot be linked to ulnar variance.

27. Dr Frederiksen was questioned about whether the applicant had told him about her physical activities away from work.  Dr Frederiksen referred to a letter that he wrote to Dr Felipe Londondo, the applicant’s general practitioner, on 26 May 2014 in which he stated that the applicant “lives on the land and undertakes light activities”. However, under cross-examination Dr Frederickson conceded that he was unaware of what those light duties are. Dr Frederickson in his report of 11 June 2015 has stated that the applicant undertakes “intermittent farm activities such as driving a tractor”.[29]

    [29] Exhibit D, p 2.

28. I do not accept that the farm activities of the applicant are restricted to driving a tractor as medical records disclose that for some time prior to the claim the applicant has done fencing and handled cattle as well as rode horses. The farm activities undertaken by the applicant cannot be regarded as intermittent as the applicant had concerns as to her ability to undertake her farm duties when her employer gave notice of intention to change the rostered hours of work.[30] When there was a change from a 9 day fortnight to a 19 day month, the applicant stated that it would be difficult to work her cattle with one less day available. It is reasonable to make the inference that the applicant has daily farm duties to attend to and that she works her cattle on a daily basis. The records from her general practitioner on 15 November 2011 and again on 30 November 2011 expressed his concern that the applicant did not wear gloves or protective gear when handling cattle.

    [30] Exhibit A, p 63.

29. Dr Frederiksen stated that he had seen presentations saying hand stiffness in the morning. However, Dr Frederiksen stated that he “would not attribute total significance to hand stiffness in the morning given that Mrs Weedon’s presentation to me was mostly wrist”. However, there is evidence that the applicant had a pre-existing condition concerning her wrists and not just her hands. The records from the general practitioner from 30 November 2011 refer to the fact that “for the last few weeks” the applicant “has felt uncomfortable joint feeling (not really pain) associated with some stiffness mainly wrists”. I conclude that the medical records of the 30 November 2011 confirm that the stiffness complaint concerned mainly the wrists of the applicant.

30. While the reports of Dr Fredricksen confirm the diagnosis of the conditions of the applicant, which are not in issue, his reports do not discuss the previous history of the applicant in relation to her hand conditions. The reports do not examine whether factors other than her employment have contributed to her claimed conditions.

1. Upon my review of the evidence I have concluded that there is no evidence that the employment of the applicant did contribute to the claimed conditions to a significant degree.  Whilst the applicant does not bear any onus of proof, there must nevertheless be evidence upon which I can reach the decision sought by the applicant.

2. I rely upon the opinions of Drs Douglas and Hazelton and find that there is not any evidence that the applicant’s employment contributed, to a significant degree to her claimed synovitis and tenosynovitis conditions. Dr Hazelton, in reliance on a 1990 study by Metz,[31] has concluded that the degeneration of  triangular fibrocartilage of both wrist joints is caused by age related degenerative change in connective tissue in the central avascular part of the triangular fibrocartilage. Whilst Dr Frederiksen has taken issue with the fact that the Metz study was done in 1990, there has not been any suggestion that the study has been contradicted in subsequent studies. Dr Hazelton considers that the synovitis condition is consistent with osteoarthritis and has pointed out that osteoarthritis is more prevalent in females and becomes more manifest with age. Dr Hazelton has pointed out that he regards the applicant’s age and gender as significant matters to take into account in considering the osteoarthritis condition: he observed that the applicant has osteoarthritis of the spine, the neck, the dorsal spine and the first metatarsophalangeal of the big toe. Dr Douglas also considers that the synovitis condition is consistent with arthritis or trauma. There was no assertion by the applicant of any workplace trauma in the claim form.

   [31] Metz, V. et al (1990), Age-associated Changes of the Triangular Fibrocartilage of the Wrist: Evaluation of the Diagnostic Performance of MR Imaging, Musculoskeletal Radiology, 184, 217-220.

3. I must also consider whether the employment of the applicant aggravated her aliments to a significant degree. This is because it has been contended that the work of the applicant has aggravated ailments of the applicant which comes within the definition of a “disease” (s. 5B). The ailments being the damage to the triangular fibrocartilage and lunate of both wrists by the ulnocarpal syndrome and the damage to the hamate of the right wrist by the hamatolunate impingement syndrome. Whilst the commissioning letter to Dr Fredricksen asked him to comment upon aggravation, his report does not contain any comment about the issue of aggravation. Dr Frederiksen confirmed when he was giving his evidence that he had not responded to that question and in giving evidence he did not give any opinion on the issue of aggravation.

4. I do not consider that there is any cogent evidence that her employment aggravated her ailments to a significant degree. Certainly Dr Frederiksen has not given any such opinion either in his report or in his oral evidence. The applicant has quite properly conceded that it may be accepted that “fairly strenuous farm work” could contribute to the applicant’s conditions. However, the reports and evidence of Dr Frederickson do not contain any acknowledgement of the effects of farm work. While the case of the applicant was based upon ulnar variation at the workplace, there was no evidence before the Tribunal of any history being taken to assess the extent of ulnar variation by the applicant at the workplace. Dr Douglas has pointed out that the applicant continued to have symptoms even after she had ceased undertaking the work duties that she had alleged had contributed to the condition.

   DECISION

5. I affirm the decision under review.

I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated 2 December 2015

Date of hearing	24 June 2015
Date final submissions received	6 August 2015
Counsel for the Applicant	Mr M Black
Solicitors for the Applicant	Slater and Gordon
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	Sparke Helmore