Wickes and Telstra Corporation Limited

[2004] AATA 494

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 494

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2002/496

GENERAL ADMINISTRATIVE DIVISION		)
Re		LAMMINA MINEKE WICKES

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr M D Miller AO, Member

Date18 May 2004

PlaceCanberra

Decision The reviewable decision is affirmed.  The applicant is entitled to no costs associated with this application.

[sgd] M J Sassella

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – tendonitis of right thumb – osteoarthritis of right thumb – notice of injury not given by employee as soon as practicable – prejudice to respondent – delay in notifying not resulting from death or absence overseas or from ignorance or mistake or from any other reasonable cause – tendonitis and arthritis not diseases to which employment made material contribution

Safety, Rehabilitation and Compensation Act 1988 ss 4(1)(“aggravation”, “ailment”, “disease”, “injury”), 7(6), 14(1), 53(1), (3)

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Comcare v Luck (1999) 29 AAR 403

Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534

Re Holmes and Comcare [2001] AATA 290

Roles v Pascall & Sons [1911] 1 KB 982

Commonwealth v Connors (1989) 86 ALR 247

Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385

REASONS FOR DECISION

18 May 2004 Michael Sassella, Senior Member
Dr M D Miller AO, Member            

RESULT

The tribunal has decided that at law Ms Wickes did not suffer a compensable injury because she failed to give notice of the injury as soon as practicable. In any event we find that, even if she had given proper notice, neither of her diagnosed diseases would be an injury for the purposes of the Act.

BACKGROUND

1.      Ms Lammina Mineke Wickes (“the applicant”), born 2 October 1947, lodged with Telstra Corporation Limited (“Telstra”, “the respondent”, “the employer”) a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988  (“the Act”)[1] dated 14 November 2001.  The claim was for “tenosynovitis/trigger thumb”.  The date of onset of the injury was said to be 3 October 1999.  The date of the first medical treatment was said to be approximately 23 February 2000.  In the claim form she stated that her position working for Telstra as a complaints officer required her to spend “many hours” daily taking down handwritten notes of complaints from customers who phoned in.  In an earlier position she had been required to write out job orders from customers while on the telephone.  On 12 August 2002 GIO (Telstra’s insurer) decided to reject Ms Wickes’s claim on the basis of a report by Dr R D Whittaker, a rheumatologist, who reported on 18 July 2002 that Ms Wickes was suffering from degenerative osteoarthritis involving “the right first metacarpophalangeal joint/sesamoid articulation and right first interphalangeal joint”.  He saw no work-related contribution to Ms Wickes’s symptoms which, he said, reflected the underlying degenerative disease. 

[1] decision was challenged.  In an internal review GIO affirmed the earlier decision on 16 December 2002.  Ms Wickes appealed to the Administrative Appeals Tribunal (“the tribunal”). 

ISSUES

3. Ms Wickes’s current interest in this matter is obtaining compensation for her medical expenses associated with her condition, although some of the evidence suggested a possible claim to come at some stage for a lump sum compensation payment for permanent impairment. Ms Wickes must have suffered an injury, as defined in s 4(1) of the Act, if she is to receive any compensation under the Act. An injury is defined in s 4(1) as:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

…

4. Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

5. The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 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);

6. An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

7. If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

8. A threshold issue is Ms Wickes’s apparent failure to satisfy s 53 of the Act. The effect of s 53(1) is that compensation cannot be paid under the Act unless Ms Wickes gave notice in writing of her injury to Telstra as soon as practicable after she became aware of the injury. Ms Wickes became aware of her alleged injury on 3 October 1999 but gave no written notice until 14 November 2001, more than two years later and not likely to be “as soon as practicable” after the date of awareness.

9. Section 53(3) may assist Ms Wickes in that it allows a decision-maker such as the tribunal to deem appropriate notice to have been given where late notice has been given, and any one of the following conditions applies:

·     Telstra would not, by reason of the failure, be prejudiced if the notice is treated as sufficient notice; or

·     The failure resulted from the death or absence from Australia of a person; or

·     The failure resulted from ignorance; or

·     The failure resulted from a mistake; or

·     The failure resulted from any other reasonable cause.

10.     On the question of whether Ms Wickes bears any onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413. His conclusion was that in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where material necessary to an applicant's case is not laid before the tribunal the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant. In the present case it is in Ms Wickes’s interests to convince the tribunal that her claim should be accepted and that she should receive her compensation.

11.     The issues for decision by the tribunal are:

(a)Has Ms Wickes given Telstra notice in writing purporting to be notice under s 53 of the Act?

(b)If the answer to (a) is yes, did that notice comply with the requirements of s 53(1) of the Act?

(c)If the answer to (b) is no, is Telstra prejudiced if the notice is treated as sufficient notice?

(d)If the answer to (c) is yes, did Ms Wickes’s failure result from the death or absence from Australia of a person?

(e)If the answer to (d) is no, did Ms Wickes’s failure result from ignorance?

(f)If the answer to (e) is no, did Ms Wickes’s failure result from a mistake?

(g)If the answer to (f) is no, did Ms Wickes’s failure result from any other reasonable cause?

(h)If the answer to (b) is yes, or the answer to (c) is no, or the answer to any of (d) to (g) is yes, did Ms Wickes suffer an injury other than a disease under the Act?

(i)If the answer to (h) is no, did she suffer an injury in the form of a disease under the Act?

12. We are considering the s 53 issues first because, if there is no compensation payable under the Act, it is not necessary to make formal decisions in relation to issues (h) and (i).

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(a) Has Ms Wickes given Telstra notice in writing purporting to be notice under s 53 of the Act?

13. Ms Wickes’s notice was provided on a Comcare standard form of claim. This form has been devised by Comcare and provides all necessary details for an assessment of a claim. In so doing it requires details of the injury and so acts as a notice of injury. The Federal Court allowed a claim form to serve as written notice under s 53 in Comcare v Luck (1999) 29 AAR 403. The answer then is yes, even though an exact form of words stating that it is a s 53 notice does not appear.

(b) If the answer to (a) is yes, did that notice comply with the requirements of s 53(1) of the Act?

14.     The notice complied in all respects except that it was not provided as soon as practicable after Ms Wickes became aware of the injury (see [8] above).  The answer to (b) is no.

(c)       If the answer to (b) is no, is Telstra prejudiced if the notice is treated as sufficient notice?

15.     Mr Kelly, counsel for Telstra, argued that Telstra would be prejudiced by acceptance of the late notice.  He referred to contention 2.3(c) in Telstra’s statement of facts and contentions dated 15 May 2003.  The contention is that Ms Wickes’s condition could be a wholly underlying degenerative condition that developed as part of the natural ageing process with no connection to employment.  Telstra had some support from Dr G G Griffith, a surgeon, in this regard.  Dr Griffith had taken a history that running her household caused Ms Wickes “nagging discomfort”.  This indicated that her condition may transiently become worse but not because of her Telstra employment. 

16.     Dr Griffith in oral evidence before the tribunal said that it would be possible to say that the osteoarthritis that he had identified was related to employment, as distinct from having a constitutional basis, if there had been x-ray investigations of both hands showing the relevant extent of the osteoarthritis.  We take this to mean that, if the osteoarthritis affected both hands equally, it would likely be constitutional whereas, if it affected the right more than the left it would likely be work-related.  Mr Kelly said that Telstra was not given the opportunity of obtaining such evidence because the alleged injury was never reported while Ms Wickes was at work or prior to the thumb triggering.

17.     Ms Walker, for Ms Wickes, argued that it was only when Ms Wickes experienced an incidence of trigger thumb in September 1999 that she thought there may have been a connection between her thumb problems, which had been developing, and her employment with Telstra (which ended in August 1999 after she had been on sick leave following bunion surgery in May 1999).  Ms Walker said that it was only after Ms Wickes received a report by orthopaedic surgeon Dr C Roberts dated 19 March 2001 that she read that typing and using her hands for repetitive activity could have aggravated her underlying trigger thumb condition.  She then gave notice eight months later, which Ms Walker said was not a significantly long period “in terms of how these matters go on occasion”. 

18.     Ms Walker cited the tribunal’s decision in Re Tierney and Reserve Bank of Australia (1988) 15 ALD 534 in support. However, that decision, at least as reported, addresses a situation quite different from Ms Wickes’s. In that case the problems were that the employee had given notice to a clerk in her workplace seven months after the date of injury rather than to “the Commonwealth” which, under the Compensation (Commonwealth Government Employees) Act 1971, was the Office of the Commissioner for Employees’ Compensation.  The tribunal held that service of notice to a personnel officer in the employing agency was adequate service.  We do not have that difficulty in the present case.  The tribunal noted that after 19 April 1982 Ms Tierney was on immediate sick leave followed by three months long service leave followed by more sick leave.  The tribunal did not go into whether the respondent had been prejudiced by the delay in serving notice.

19.     Ms Walker referred also to Re Holmes and Comcare [2001] AATA 290 in which Mr Holmes became aware of an occupational overuse injury on 8 September 1992 but did not give written notice of this injury until 18 May 1998. He told the tribunal (paragraph 4) that he decided not to make a claim for compensation because at that time he expected to work with the Commonwealth until he retired and he thought that the making of a compensation claim for occupational overuse syndrome would adversely affect his career in the public service. He added that he preferred to manage these problems himself with his own resources in the knowledge that his employment provided him with sick leave and superannuation entitlements which he could take if necessary. He said that what "forced [his] hand" in making a compensation claim was his perception that, with the large employment cutbacks that were occurring in the public service at the time, his job security was threatened and he no longer had a future in the public service, and his concern that he needed to establish that he had contracted work-related physical problems and that his employer, the Commonwealth, was responsible for them. He ceased employment in March 1999 taking voluntary redundancy.

20. The tribunal held that, in the circumstances, Comcare had not been prejudiced by the employee’s delay in claiming. In paragraph 38 the tribunal explained its reasoning. No specific evidence or material indicating that the respondent had in fact been prejudiced by the applicant's failure to comply with s 53(1)(a) of the Act had been presented. Instead, it had been submitted that the tribunal should infer that the respondent had been prejudiced by reason merely of the fact that the applicant "chose" not to give notice of the relevant injury until May 1998. The tribunal was not prepared to draw that inference. The injury or disease in question was, of its nature, not one which allegedly "occurred on some specific occasion", or which was allegedly "contracted because of some brief and transient situation", in the course of his employment. Rather, the injury or disease had gradually developed over a long period of time since its symptoms first manifested themselves in September 1992 and those symptoms continued to persist at the time of the hearing.

21. The tribunal also noted that, prior to the applicant's ceasing his employment with the Commonwealth in March 1999, and during the period in which his claimed injury or disease was continuing to manifest symptoms, the respondent was able to obtain a medical report from the applicant's treating general practitioner dated 4 August 1998 which enclosed a copy of another medical report of 4 June 1998 together with copies of relevant medical certificates and details of consultations with the applicant, and a comprehensive medical report from Dr Whittaker dated 5 October 1998. It had been on the basis of those medical reports that the respondent disallowed the applicant's claim for compensation. Having regard to those circumstances, the tribunal found that the respondent was not prejudiced if the lodgement of the compensation claim form on 18 May 1998 were treated as a sufficient notice for the purposes of s 53 of the Act.

22.     The circumstances in the present case are somewhat different although there are similarities.  The comparisons are:

·     Ms Wickes’s delay in giving notice (two years) was far shorter than Mr Holmes’ period (six years).  By itself this would suggest a decision in Ms Wickes’s favour.

·     Mr Holmes knew he had a potential compensation claim but for his own reasons did not pursue it for that lengthy period.  Ms Wickes is said to have been unaware of her potential claim until eight months before notifying it.  This would also argue in Ms Wickes’s favour.  However, Ms Wickes told Informed Reports in an interview conducted around 14 August 2002 that “[i]n October 1999, within a matter of a few days of my effective cessation date from Telstra, I started to notice a distinct pain to my right thumb area.  There was no trauma or other accident that I can think of that could have caused this, and I put it down to the wear and tear from writing and typing at Telstra over the years”.  We take this to mean that she formed the view at about October 1999 that her pain was caused by the nature and conditions of her Telstra work.  This was what she should have reported as soon as practicable to Telstra.  We do not see the subsequent report from Dr Roberts as a necessary step in Ms Wickes forming a view that her employment may have been related to her thumb pain. 

·     Ms Wickes’s condition, like Mr Holmes’, was a condition of insidious onset such that it is difficult at any precise time to identify a date of injury.  This would argue in Ms Wickes’s favour except that she was actually aware of the thumb pain in October 1999 and failed to notify it until over two years later.

·     In Mr Holmes’ case the insurer had access to a considerable quantity of relevant medical evidence contemporaneous to the onset of the compensable condition.  Telstra was not in so fortunate a position in Ms Wickes’s case.  This counts against Ms Wickes.

·     There was no specific prejudice identified by the respondent in Mr Holmes’ case.  Telstra here has identified possible prejudice in [15] and [16]. 

23.     Had Ms Wickes thought of a possible work connection to explain her right thumb pain no earlier than in March 2001 we would see Ms Walker’s submission above in [17] as convincing.  However, Ms Wickes has herself said that she considered that there was a work connection as early as October 1999.  We comment also that, although Ms Wickes acted more quickly than Mr Holmes to notify her injury, we consider a delay of over two years as nevertheless excessive. 

24.     We find that Telstra did suffer prejudice from Ms Wickes’s delay is giving written notice of her injury.

(d)      If the answer to (c) is yes, did Ms Wickes’s failure result from the death or absence from Australia of a person?

25.     There was no suggestion to the tribunal that the failure resulted from a death or the absence of a person from Australia.

(e)      If the answer to (d) is no, did Ms Wickes’s failure result from ignorance?

26.     The authorities suggest that the ignorance in question has to be ignorance of a right to claim compensation in respect of a certain type of injury (Roles v Pascall & Sons [1911] 1 KB 982; Commonwealth v Connors (1989) 86 ALR 247). Ms Walker said that Ms Wickes was relying on ignorance as the cause of her failure to notify up until March 2001. We find this difficult to accept given Ms Wickes’s comments to Informed Reports in which she saw a connection in October 1999 between her injury and the nature and conditions of her Telstra employment. We can see nothing in Dr Roberts’ report that altered Ms Wickes’s state of knowledge. We do not find that Ms Wickes’s failure resulted from ignorance.

(f)       If the answer to (e) is no, did Ms Wickes’s failure result from a mistake?

27.     No arguments suggesting a mistake as the cause of Ms Wickes’s failure were presented to us and we could see none ourselves.  We find that Ms Wickes’s failure did not result from mistake.

(g)      If the answer to (f) is no, did Ms Wickes’s failure result from any other reasonable cause?

28.     We were presented with no material suggesting “any other reasonable cause”.  We heard evidence of Ms Wickes’s family problems, eg her husband’s stroke or onset of multiple sclerosis.  However, these seemed to have passed their peak by October 1999.  She underwent treatment for her hand problems early in 2000 and she began part-time work at Flynn Primary School in about August 2000.  It appears to us that Ms Wickes was getting her disrupted life back into order in 2000 and that the disruptions do not explain the lengthy delay.  If they did suffice to do that they could qualify as an “other reasonable cause”.  We find there was no other reasonable cause to explain the delay.

(h) If the answer to (b) is yes, or the answer to (c) is no, or the answer to any of (d) to (g) is yes, did Ms Wickes suffer an injury other than a disease under the Act?

29.     The answers were no to (b), (d), (e), (f) and (g).  The answer to (c) was yes.  Strictly, this question requires no answer.  However, for completeness we will consider this and question (i).  The tribunal finds that there was no frank injury in this case, which is what the question seeks to canvas. 

(i) If the answer to (h) is no, did she suffer an injury in the form of a disease under the Act?

30. Again it is not strictly necessary to pursue this issue given our decision on s 53 of the Act. However, much tribunal time was devoted to Ms Wickes’s condition and we wish to express our findings regarding this.

31.     An injury in the form of a disease is compensable where the employee’s employment has made a contribution in a material degree to the onset or aggravation of the disease ([4] above).  There is a fair unanimity of medical views as regards diagnoses of Ms Wickes’s conditions.  She suffered from a right-sided trigger thumb, a form of tendonitis or tenosynovitis, which was assisted by a Cortisone injection on 21 March 2000.  The thumb triggering has not recurred since the injection.  Ms Wickes reported continued pain and some weakness in use of the right thumb.  This was regarded as a form of arthritis, sesamoid arthritis according to Dr Griffith.  When Dr N W McGill, a rheumatologist, saw Ms Wickes on 20 June 2003 he observed normal thumb function.  He was not alone in this.  Dr Roberts saw a good range of movement on 11 May 2000.  Dr Whittaker said that the right thumb was only a little restricted on 18 July 2002.  Dr Griffith described a range of movement in the right thumb barely less than the left on 26 March 2003.  Dr McGill described the arthritis condition as minor degenerative change.

32.     Drs McGill and Whittaker regarded the conditions as not work-related.  Dr Whittaker, writing on 18 July 2002, considered the examination findings and radiography entirely consistent with degenerative osteoarthritis involving the right first metacarpophalangeal joint/sesamoid articulation and right first interphalangeal joint.  He said it was likely that the degenerative changes in the right first metacarpophalangeal joint precipitated her “right flexor pollicis longus tendonitis”, or trigger thumb.  He explained that an element of degeneration may have irritated the flexor tendon, although he was unable to point to studies addressing this possibility.  He also thought Ms Wickes’s home activities may have aggravated the problem in October 1999.  He did not see prolonged handwriting as aggravating the problem because the flexor tendon does not move during handwriting.  He noted that the tendonitis had responded well to steroid infiltration.  Her ongoing symptoms were said to reflect the underlying degenerative disease. 

33.     Dr Whittaker saw no work connection to the trigger thumb because of the time it took for the condition to develop after Ms Wickes stopped working and because writing is not an activity that brings on the condition.  What is needed is repetitive, firm gripping that causes an increased pull or friction on the flexor tendon. 

34.     He saw the arthritis as not related to Ms Wickes’s employment because there is no evidence of employment causing or aggravating primary generalised osteoarthritis.  The condition, he said, is one particularly seen in women of Ms Wickes’s age and classically involves small joints such as thumbs and toes.  There was evidence in general practitioner clinical notes of Ms Wickes consulting the doctor in 1997 for symptoms affecting both thumbs.  This reinforced Dr Whittaker in his view.  Osteoarthritis is commonly present in symmetric distribution.  An effect on both thumbs would also suggest that handwriting was not the cause of symptoms. 

35.     Dr McGill considered that the development of the thumb flexor tenosynovitis and degenerative changes between the sesamoid and thumb metacarpal were not related to Ms Wickes’s work.  As the symptoms commenced more than four months after Ms Wickes finished work he was confident that the symptoms were a reflection of age related constitutional degenerative change and the activities she was performing immediately before the symptoms developed.  Mr Kelly put to Dr McGill a list of these domestic activities:

·     Dr Roberts recorded on 11 May 2000 that Ms Wickes had been working quite heavily at home.  Her husband had been diagnosed with multiple sclerosis and she was looking after her elderly mother.

·     Dr Whittaker wrote that Ms Wickes’s right thumb was “pretty good” when she was on sick leave and not performing any of her domestic chores, with her mother doing these in that period.  In September 1999 when she resumed her domestic chores as well as caring for her husband her symptoms escalated.

·     Dr Griffith took a history of Ms Wickes ceasing work to undergo bunion surgery in April 1999 and then, after four months, the thumb became painful.  She tolerated this for some months, taking Panadol.  She continued to run the household where there were adult children in residence in addition to her husband.  These activities produced nagging discomfort in the affected area which became worse over a period of some two months.

Dr McGill could not say which household activities were aggravating the thumb but he thought, on those histories, that such aggravation was likely.

36.     Dr Roberts considered that trigger finger or thumb can be linked to writing.  Repetitive use of a tendon can cause irritation of the tendon as it passes through the tunnel.  It can take years to develop.  Writing, holding files and flexing the thumb can, he said, cause the disability.  He said that the trigger finger could come from keyboard work and that writing could exacerbate the problem.  He regarded Ms Wickes’s ongoing pain in the thumb as related to the tendonitis.  He had seen a nodule on the flexor tendon in May 2000 after the successful Cortisone injection.  (Dr Griffith saw this nodule in March 2003 but, by the time Dr McGill examined Ms Wickes in June 2003, the nodule had disappeared.) 

37.     Mr Kelly took Dr Roberts through evidence that tended to suggest less of a connection between Ms Wickes’s Telstra duties and her symptoms.  These included evidence from her supervisors that she had been required to do less handwriting in her last year at work (a point not conceded by Ms Wickes) and the length of time after she left work before the symptoms emerged.  Dr Roberts agreed that these made a link between the symptoms and the handwriting less likely.  He said, however, that he could still see a work connection because of the length of time Ms Wickes spent working at Telstra doing handwriting.  He thought the immediate cause of the triggering was probably not work-related. 

38.     Dr Roberts did not see the 1997 bilateral thumb problems as inconsistent with the development of tendonitis – it could develop in both thumbs if both were used repetitively.  The fact that one went on to lock as in trigger thumb would suggest that it was used to a greater extent than the other.  He did agree, however, that osteoarthritis could itself lead to inflammation causing the trigger thumb problem.  The two separate pathologies can interact because they are close to each other. 

39.     Dr Griffith considered that there was a connection between Ms Wickes’s symptoms and her employment despite the onset of symptoms four months after work ended.  This was because of the cumulative effect of many years of intensive handwriting.  He saw the presence of the tendon nodule as evidence of a condition of protracted onset.  He said that such a nodule does not develop in a very short space of time.  It is a matter of weeks to months rather than days.  He allowed that it could have developed in the five months Ms Wickes had off work before the October 1999 symptoms.  Dr Griffith addressed the sesamoid arthritis diagnosis.  He saw that as accelerated by her work.  It would then have gone into remission after about three months but she would be more prone to recurrent bursts of pain thereafter.  Dr Griffith sees the current state of the arthritis as more advanced than it would be had Ms Wickes not done the particular duties she had at Telstra. 

40.     Like Dr Roberts, when it was put to Dr Griffith that Ms Wickes’s handwriting duties had decreased in her final year at Telstra, and that the onset of symptoms was five months after she stopped work, he agreed that the case for a connection between work and the condition reduced.  However, he added that he did not regard the handwriting as the only factor.  He saw that as contributing to her symptoms and accelerating the arthritis.  He agreed that the scenario could be that Ms Wickes had an underlying predisposing condition, that this was aggravated at times by activity she was doing, that there may have been a period of aggravation at Telstra, that that aggravation ceased, and that she suffered a further aggravation as a result of her domestic activities in September/October 1999. 

41.     In relation to the different observations by doctors of a nodule on the right thumb tendon, there was some suggestion that Dr McGill had not touched Ms Wickes at any stage in performing his examination and it was hinted that this may be why Dr McGill did not detect the nodule.  Dr McGill gave oral and written evidence regarding his examination of Ms Wickes and said that he did use touch in examining her hands.  We found that evidence convincing.  This was partly because Dr McGill frequently provides opinions in matters before this tribunal and similar criticisms of his examination procedure have not been made previously, in our experience. 

42.     We feel that this summary of the medical material demonstrates the difficulties that have flowed from the lack of contemporaneous medical information from the period when Ms Wickes first noticed that she was having problems that she thought related to her Telstra work.  Imaging studies of both hands in 1997 or even later would have helped indicate the presence and extent of any arthritis.  We are hampered also by the lack of any medical evidence later than Dr McGill’s addressing whether the tendon nodule seen by several doctors up to March 2003 was still present but had been missed by Dr McGill or, if it had disappeared whether it had reappeared.  This seemed to be the crucial aspect of Ms Wickes’s case.  Ms Walker was keen to have the thumb tendonitis regarded as work-related in case the problem again becomes symptomatic.

43.     From our consideration of this material the most likely scenario seems to us to be that the bilateral thumb pain in 1997 was arthritis.  Dr Roberts thought it could have been bilateral tendonitis but we were offered no evidence regarding any left hand activities that could have precipitated tendonitis at that time.

44.     As regards the tendonitis, while we found aspects of Dr Whittaker’s evidence irritating in that he repeatedly seemed to want to present his own theory rather than answer the particular question, we found his evidence regarding tendonitis to be better developed than that of any of the other experts.  His description of the physical actions that might bring on tendonitis were presented with confidence and appeared entirely credible.  He suggested as examples carrying heavy shopping bags on a single finger or, for bilateral tendonitis, rock climbing.  His explanation for his view that handwriting does not involve movement of the thumb tendon was one we also found convincing. 

45.     It is clear that Ms Wickes’s tendonitis developed after she left work.  It was said in evidence that it takes weeks or months or years to develop.  In Ms Wickes’s case it was some five months after Ms Wickes finished work that the triggering began.  Even those medical experts who saw Ms Wickes’s period of intensive handwriting at Telstra as a cause of the condition became more tentative when presented with that information.  We consider that those doctors who regarded the tendonitis as caused by her home duties in 1999 as more likely to be correct in their analysis in view of the time of onset of the condition.

46.     As a theory in the applicant’s favour we were impressed by Dr Griffith’s suggestion that Ms Wickes’s work accelerated her sesamoid arthritis and made her more prone to recurrent bursts of pain.  This could suggest a disease to which Ms Wickes’s work made a contribution in a material degree.  In Asioty v Canberra Abattoir Pty Ltd (1989) 87 ALR 385 the High Court looked at the situation of a progressive disease that is accelerated by work and it said at page 390:

“But, in that form, is the disease due to the nature of the appellant’s employment with the respondent and is the appellant thereby incapacitated for work? The answer to each of those questions is ‘yes’, for the reasons given by Kelly J. His Honour said:

‘If —

(a)       a workman has a chronic, non-incapacitating pre-existing disease;

(b)the nature of his employment causes for the first time a temporary incapacitating aggravation of the disease;

(c)       the aggravation ceases when the workman stops work;

(d)the aggravation is renewed when he again starts work in the same employment; and

(e)the pre-existing disease rendered more recalcitrant by the episodes of aggravation now prevents the workman from working in a large range of occupations because such work will cause a similar aggravation

it seems to me that the nature of the employment has aggravated the pre-existing disease to the point where it is incapacitating.’

“I have italicised the words ‘for the first time’ and ‘now’ in Kelly J’s summary because I think it was the failure of the Federal Court to direct attention to what underlies those words that led their Honours into error.  …”

47.     If Dr Griffith’s analysis of the situation in [39] above was correct Ms Wickes would have a compensable arthritis condition.  In [40], however, he seemed to subscribe to a different analysis whereby there were distinct aggravations at Telstra and later at home.  We find Dr McGill’s analysis [35] of the connection, or lack of connection, between the arthritis and Ms Wickes’s work more plausible.  As the symptoms which he attributed to arthritis commenced so long as she finished active work he saw the symptoms as a reflection of age related constitutional degenerative change.

48.     In conclusion, therefore, we are not satisfied that Ms Wickes’s diagnosed conditions of tendonitis and arthritis are in either case diseases to which her employment made a material contribution either as regards original onset or any aggravation.

CONCLUSION

49. For the reasons given we have decided that at law Ms Wickes did not suffer a compensable injury because of failure to satisfy s 53 of the Act. We find, however, that, even if she had satisfied s 53 of the Act, neither of her diagnosed diseases would have been an injury for the purposes of the Act.

DECISION

50.     The reviewable decision is affirmed.  The applicant is entitled to no costs associated with this application.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member and Dr M D Miller AO, Member

Signed:         .....................................................................................
  Associate

Dates of hearing  5, 6 February, 8 March 2004
Date of decision  18 May 2004
Counsel for the applicant          Ms Lorraine Walker
Solicitor for the applicant          Slater & Gordon Lawyers
Counsel for the respondent      Mr Brendan Kelly
Solicitor for the respondent      Sparke Helmore