Wild and Comcare (Compensation)
[2016] AATA 423
•24 June 2016
Wild and Comcare (Compensation) [2016] AATA 423 (24 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0421
Re
Samanthia Wild
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Melick & Member Morris
Date 24 June 2016 Place Hobart The decision under review is affirmed.
........................................................................
Deputy President Melick
CATCHWORDS
COMPENSATION – ailment – bilateral carpal tunnel syndrome – bilateral subacromial bursitis – whether employment aggravated ailment – whether employment contributed to aggravation of an ailment to a significant degree – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
REASONS FOR DECISION
Deputy President Melick & Member Morris
OVERVIEW
Ms Samanthia Wild has made a claim for compensation for an “injury” under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The Applicant seeks compensation for carpal tunnel syndrome and/or bilateral subacromial bursitis, on the basis that Ms Wild’s employment had contributed, to a significant degree, to her condition.
BACKGROUND
On 21 July 2014 Ms Samanthia Wild, an officer in the Department of Human Services, made a claim under the SRC Act for compensation in respect of ‘carpal tunnel syndrome (right)’ and ‘bilateral subacromial bursitis’ which she stated arose as a result of ‘position of sitting at desk for periods of time on phone app’.
By a Determination dated 1 October 2014, Comcare denied Ms Wild’s claim under section 14 of the SRC Act.
On 31 October 2014 Mr Abraham Ghaleb from Slater & Gordon Solicitors, requested a reconsideration of the Determination on Ms Wild’s behalf.
On 16 December 2014, an Independent Review Officer for Comcare, Ms James, wrote to Ms Wild saying that, after evaluating the evidence, she affirms the decision in the 1 October 2014 Determination.
Ms Wild has now applied to the Tribunal to have that 16 December 2014 decision reviewed.
QUESTIONS
The questions before the Tribunal are:
Is the Applicant suffering from an ailment or the aggravation of an ailment?
If so, was it contributed to, to a significant degree, by the Applicant’s employment with the Department of Human Services?
A hearing was held on 22 and 23 March 2016. The Applicant was represented by Mr Justin Zeeman, with Ms Nicola Maher. The Respondent was represented by Ms Cathy Dowsett, with Ms Naomi Richards. The Applicant was sworn and gave evidence. We found her to be an engaging, forthright and honest witness.
The Tribunal had before it T documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975. We also considered a number of other documents tendered as exhibits during the hearing, and submissions from both the Applicant and the Respondent made after the hearing concluded.
IS THE APPLICANT SUFFERING FROM AN AILMENT OR THE AGGRAVATION OF AN AILMENT?
Subsection 5A(1) of the SRC Act requires that an employee must suffer an “injury”.
At the hearing on 22 March 2016 medical evidence was given by the Applicant’s lawyers that Ms Wild had been diagnosed with ‘carpal tunnel syndrome’ (CTS) and ‘bilateral subacromial bursitis’. This was consistent with the medical evidence before the Review Officer. Counsel for the Respondent advised the Tribunal that they accepted this diagnosis, and that the matter in dispute is the causative nature of the ‘injury’.
On the basis of the medical evidence, the Tribunal finds that the Applicant is suffering from an ailment or the aggravation of an ailment.
Therefore, the issue is not whether Ms Wild suffers from these two conditions; it is whether they were contributed to, to a substantial degree, by her employment.
WAS THE AILMENT OR THE AGGRAVATION OF THE AILMENT CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY THE APPLICANT’S EMPLOYMENT WITH THE DEPARTMENT OF HUMAN SERVICES?
The SRC Act provides, at section 5A(1)(b):
"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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
The Review Officer was required to consider whether, on the balance of probabilities, Ms Wild’s claimed condition was contributed to, to a significant degree, by her employment by the Department of Human Services (DHS). In other words, under the SRC Act, the cause of the claimed condition must be clearly and closely linked to her employment.
MS WILD’S EMPLOYMENT WITH THE DEPARTMENT OF HUMAN SERVICES
Ms Wild gave evidence to the Tribunal of her history of employment with the DHS.
She was initially employed in South Hedland, Western Australia, in a small office which served a large part of the Pilbara Region. Her work required that she deal with a large geographical area. Her manager was only part-time so Ms Wild had significant responsibilities. Her work involved seeing clients in the office, as well as travelling to home visits and significant travel by car. Her evidence was that she did much written work by hand, as she did not have a portable computer.
After taking leave without pay to travel domestically and internationally with her husband, Ms Wild returned to work at the DHS in January 2013. During her absence, there had been a change in the DHS to less face-to-face work and more work by telephone. Ms Wild was offered a new position with the Telephone Access Service, which she accepted.
In March 2013, Ms Wild moved with her husband to Nunamara near Launceston, and she commenced work at the Launceston office of DHS.
In June 2013, Ms Wild reported shoulder trouble and her supervisor asked her to contact a local OH&S representative for a workplace assessment.
On 14 February 2014 a workplace assessment was undertaken by an organisation named Recovre. During the assessment, alternatives were recommended to how Ms Wild’s work station was set up and some changes made. However, Ms Wild later returned her desk set up to the original position.
In January 2014 Ms Wild saw Dr Gary Kilov, a Launceston General Practitioner, about her bilateral shoulder and arm/wrist pain. She had nerve conduction tests completed which indicated moderate right neuropathy in the right wrist.
Dr Kilov, in an undated report to Comcare, diagnosed Ms Wild as suffering from ‘tendonitis’ and ‘bursitis of the rotator cuff’.
On 12 September 2014 Ms Wild saw Dr Loretta Reiter, Consultant Rheumatologist, in order for a medical examination to be undertaken for Comcare. In her report dated 19 September 2014, Dr Reiter diagnosed Ms Wild as suffering from ‘right carpal tunnel syndrome’ and ‘bilateral subacromial bursitis’.
The Review Officer preferred Dr Reiter’s diagnosis over Dr Kilov’s, because of Dr Reiter’s specialist qualification. Having carefully considered both medical reports, the Tribunal also prefers Dr Reiter’s diagnosis for the same reason.
The SRC Act provides, at section 5B(2), that, in determining whether an ailment or aggravation was contributed to, by a significant degree, by an employee’s employment with the Commonwealth or a licensee, the following factors may be taken into account:
(i)the duration of the employment;
(ii)the nature of, and particular tasks involved in, the employment;
(iii)any predisposition of the employee to the ailment or aggravation;
(iv)any activities of the employee not related to the employment;
(v)any other matters affecting the employee’s health.
Subsection 5B(3) defines “significant degree” to mean a degree that is substantially more than material.
DR LORETTA REITER’S REPORT
The Tribunal had before it the report dated 19 September 2014 from Dr Loretta Reiter, consultant rheumatologist.
Dr Reiter reported that since May/June 2013, Ms Wild experienced ‘right hand numbness, pins and needles and an aching pain on the volar aspect of [her] right wrist’ and, concurrently, ‘aching in [her] right shoulder and difficulty in lifting [her] right arm’.
Dr Reiter reported that Ms Wild had experienced these symptoms at night, when driving a car, and when using a computer mouse/keyboard.
Dr Reiter reported that, in her opinion, ‘it is not mechanically possible that sitting…doing data entry and using a phone could possibly have caused impingement of the bursa’.
Dr Reiter also noted that Ms Wild’s right CTS is, in Dr Reiter’s words ‘not due to the nature of her work’. She did note that, after Ms Wild was provided with a vertical mouse at work which resulted in a slight improvement of the CTS, work may have been aggravating Ms Wild’s ‘constitutional intrinsic condition of right carpal tunnel syndrome’.
Dr Reiter concluded that Ms Wild’s bilateral shoulder and her right carpal tunnel syndrome are ‘constitutionally underlying conditions’.
We note that Dr Reiter was not called to give evidence and so the opinions in her report were not tested under cross-examination.
DR JAMES’S ROWE’S EVIDENCE
The Tribunal heard evidence by telephone from Dr James Rowe, a specialist occupational physician. Dr Rowe examined Ms Wild on 18 February 2015 and concluded that her condition is a ‘direct result of the employment and the work she performs over time’.
In his oral evidence, Dr Rowe said that CTS syndrome can be caused by repetitive ‘pressing’ activity and that pressing a key on a keyboard may be enough force. He said that the repetitive nature of the activity is extremely important. Dr Rowe said that the speed of typing is important – slower typing is a lower correlating factor for CTS. Dr Rowe did not take a history from the Applicant on the extent of her typing and computer mouse work in her employment.
When questioned in the hearing, Dr Rowe agreed that CTS is more prevalent in middle-aged women, but said it can also be found in males and in children. Dr Rowe said that he does not rule out a constitutional cause for Ms Wild’s CTS, but in his view keyboarding can cause and aggravate CTS. In his view, Ms Wild would not have developed CTS if she had not been keyboarding.
MS WILD’S EVIDENCE ABOUT HER WORK
Ms Wild is a Social Worker at the Launceston office of DHS. She confirmed that her work at the Launceston office involves taking telephone calls from clients. She said that there may be up to thirteen of these calls in a day, or sometimes many fewer when the calls were lengthier. Her evidence is that the calls vary widely in duration from 5 minutes to 120 minutes.
Her evidence, further, is that these calls, typically, involve her listening to the caller, entering relevant material on the DHS database relating to the call, such as the client’s Centrelink Reference Number, and also entering data as a record of the call. Depending on the nature of the call, Ms Wild said she might use Internet search engines to find material relevant to the needs of the caller, such as contact points for a homeless shelter, and the like.
Ms Wild agreed that her daily work did not involve constant typing, but a mixture of typing, listening, and using the computer mouse.
Ms Wild agreed that she did not touch-type in the sense that she did not type without looking at the keyboard. She said she could not type “fluently” while looking at a document; she needed to look at the keyboard to find some letters.
Ms Wild also said that her work did not involve lifting objects from above her head, in such a manner that would require complete abduction of the arm.
From this evidence, Ms Wild’s work for DHS could not accurately be described as being a ‘data entry’ job.
DR DEREK STANLEY-CLARKE’S EVIDENCE
The Tribunal heard evidence by telephone from Dr Derek Stanley-Clarke, orthopaedic surgeon. He examined the Applicant on 15 July 2015 and gave a written medical report dated 5 August 2015.
When questioned about the Applicant’s daily work of between 4 to 6 hours of non-continuous typing, and a correlation between CTS and shoulder bursitis, he said that the evidence in relation to the Applicant is insufficient. He said that CTS can occur with force and repetition, such as a road-worker using a jackhammer, but where there is repetition only, the evidence does not support a causal link.
Dr Stanley-Clarke said that ‘force’ is a pivotal factor in CTS. He said that an average hand-force requirement of 4 kilograms, which he equated to 8 times the weight of an average hammer, would be required and that keyboard work would not sustain that.
Dr Stanley-Clarke disagreed with Dr Rowe’s evidence that use of the top row of a keyboard would be sufficient for subacromial bursitis. Dr Stanley-Clarke said in his opinion in order to put the subacromial bursa under stress, a point of impingement between 70 and 100 degrees would be required and that normal keyboard work would not exceed a 30 per cent elevation.
Dr Stanley-Clarke said that his opinion was based on the fact that the Applicant’s work was not forceful, it was not based on the amount of the data entry that Ms Wild did in her daily work.
Dr Stanley-Clarke said there is no distinct relationship between keyboard work and CTS, based on “thousands” of studies. He said that, in his opinion, keyboard work may exacerbate CTS, even if such work was limited, but that it would not cause CTS.
Dr Stanley-Clarke said that the symptoms of the Applicant may have existed regardless of keyboard work. He stated that work activity will exacerbate symptomatology, as would any other activity at home or at work.
He said that pivotal to subacromial bursitis is movement of the limbs beyond a certain range and that a sitting position would not exceed 30 per cent movement of the arms, which is in his view far less than that which would aggravate bursitis.
MS CHRISTINE HATZIANESTIS’ EVIDENCE
The Tribunal heard evidence by telephone from Ms Christine Hatzianestis, Social Work Manager. She said that the Applicant would receive between six and eight calls a day, which varied day to day, and would then be required to write up the outcomes of those calls by the end of each day. Her evidence was generally consistent with the Applicant’s own account of her usual work day activity.
CONCLUSION
It is necessary under the SRC Act for an injury to be compensable, that – on the balance of probabilities – it has been contributed to, to a significant degree, by the Applicant’s employment.
It is clear from the medical evidence before the Tribunal that Ms Samanthia Wild suffers from carpal tunnel syndrome and from bilateral subacromial bursitis.
The medical opinion of Dr Reiter and Dr Stanley-Clarke is that these conditions are constitutional, not work-caused. The medical opinion of Dr Rowe is that they are work-caused owing to the repetitive nature of the Applicant’s work.
Ms Wild’s own evidence is that her work is not repetitive in nature, in terms of keyboard and computer mouse use.
After carefully considering all the evidence, we are satisfied on the balance of probabilities that the conditions the Applicant suffers from were not contributed, to a significant degree, by Ms Wild’s employment with the DHS.
She had not been employed in her current position for a lengthy period. Her work did not require lifting objects overhead, nor did it require repetitive keyboard or computer mouse work, in the nature that a data entry position might. On her own evidence, Ms Wild explained to the Tribunal what her daily work involved, which could be telephone calls from clients lasting up to two hours, some data entry, listening and discussing their particular matters, and, sometimes, Internet searches to assist them.
In the medical evidence before the Tribunal from Dr Reiter and Dr Stanley-Clarke, it has been advanced that Ms Wild’s CTS and shoulder problems are caused by, or contributed to, by her gender and other constitutional factors, but we do not need to make a finding as to the cause of her condition.
DECISION
The Tribunal finds that the ailments, or the aggravation of the ailments, suffered by the Applicant were not contributed, to a significant degree, by her employment with DHS, as required under the SRC Act.
The Tribunal accordingly affirms the decision of 16 December 2014.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of
A G Melick AO SC (Deputy President) and Mr D J Morris, Member.[Sgd]
Dated:
Dates of hearing 22 & 23 March 2016 Solicitor for the Applicant Ms Nicola Maher, Slater & Gordon Counsel for the Applicant Mr Justin Zeeman Solicitor for the Respondent Ms Naomi Richards, AGS
Counsel for the Respondent Ms Cathy Dowsett
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Statutory Construction
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Judicial Review
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Procedural Fairness
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