Williamson and Comcare (Compensation)
[2019] AATA 4774
•18 November 2019
Williamson and Comcare (Compensation) [2019] AATA 4774 (18 November 2019)
Division:GENERAL DIVISION
File Number: 2018/3105
Re:Mark Williamson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:18 November 2019
Place:Sydney
The decision of the Respondent’s delegate dated 24 April 2018 declining liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for meralgia paresthetica is affirmed.
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The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
COMPENSATION – injury – where applicant suffered from pain in hip – whether applicant suffered from an ailment – where no clear diagnosis evident – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5B, 14
CASES
Comcare v Mooi (1996) 69 FCR 430
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
18 November 2019
The Applicant seeks review of a decision of a delegate of Comcare dated 24 April 2018 who affirmed an earlier determination dated 31 January 2018 which declined liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) in respect of ‘meralgia paresthetica’.
THE RELEVANT LEGISLATION
Subsection 14(1) of the Act provides as follows:
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.
An ‘injury’ is defined in section 5A of the Act as follows:
“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…..
A ‘disease’ is defined in section 5B of the Act as follows:
“disease” means:
(c)an ailment suffered by an employee; or
(d)an aggravation of such an ailment;
that was contributed to, by a significant degree, by the employee’s employment by the Commonwealth or a licensee.
THE ISSUES
The issues for determination in this case are as follows:
·Has the Applicant suffered an ailment or aggravation of an ailment, namely meralgia paresthetica?
·If the answer to the above question is yes, was the ailment or aggravation of the ailment contributed to, to a significant degree, by his employment with the Australian Border Force; and
·Has the ailment, or the aggravation of the ailment, been resolved?
BACKGROUND
The Applicant commenced employment with the Australian Border Force in April 1991.
The Applicant gave evidence that he had been experiencing hip pain for some years which caused him pain and discomfort at work. In his view this was caused by a condition called meralgia paresthetica which was essentially caused by nerve entrapment or compression in a particular area of the body, namely the left lateral cutaneous nerve of the thigh. In his opinion, the condition was due to his work because of the necessity of sitting at particular workstation configurations for long hours and over many years. The Applicant noted that his discomfort at work had later been significantly ameliorated as a result of changes to his working environment.
Under cross-examination, the Applicant agreed that he first started to experience significant pain during a long driving trip in November 2013 where he was sitting for long periods. He said that although the road trip was a ‘time marker’ in relation to his condition, he had had problems as far as 2007. In 2010 as a result of the pain primarily in his left knee and also his hip, which was found not to be arthritis as previously thought, he was treated by a physiotherapist. As a result he felt that his knee got better. One or two years later he started to experience a different type of pain which he said came more from the hip.
In September 2015 the Applicant reported his ‘injury’ as being an ailment in his left hip to his employer. In October 2015 he trialled using a saddle chair at his workstation and later underwent an x-ray of his left and right hips which concluded that the Applicant had ‘femoracetabular impingement’ which may have been associated with early degenerative change.
In December 2015 the Applicant had an ultrasound of his left hip which concluded that he had ‘mild changes of trochanteric bursitis’. In April 2016 the Applicant had an MRI of his left hip which found ‘no significant abnormality’ along with no evidence of a tendon tear or muscle oedema or lateral tear.
Throughout 2016 and 2017 the Applicant continued to trial different chairs and configurations at his workstation.
On 12 October 2017 Mr Robotham, a qualified physiotherapist at Erko Physio, wrote a letter to Dr McLearie, the Applicant’s General Practitioner in which he stated:
…….currently, I am not picking up on classical signs of meralgia paresthetica, but instead see TFL (tensor fasciae latae) muscular tightness secondary to very poor gluteal strength.
On 30 October 2017, Professor John Orchard, a Sports Physician, wrote a letter to Dr McLearie in which he stated that the Applicants condition was ‘less clear in terms of diagnosis. It possibly still has a component of meralgia paresthetica but he has only had vague/minimal response to the cortisone injection’. Dr Orchard noted that the Applicants ‘current pain pattern is a little bit non-typical (i.e pain now more lateral hip than lateral thigh)’.
On 9 November 2017 the Applicant underwent a multi-positional MRI of his lumbo-sacral spine which found mild degenerative changes, mild L4 and moderate L5 neural exit foraminal stenosis on the right during extension and no left sided nerve root impingement.
On 22 November 2017, Professor Orchard wrote a letter to Dr McLearie which stated as follows:
I reviewed Mark Williamson regarding his left lateral hip/thigh pain, which appears to be most likely related to meralgia parathetica. He has gradual onset symptoms for about 4 years, but with 2 years where it bothers him substantially at work on prolonged sitting. It is definitely posture related as reduction in sitting relieves pain. Because of the diagnosis, his work, absence of other factors (eg he is normal body weight) I feel that this is a work-related injury as the predominant cause.
The Applicant lodged a workers compensation claim with his employer on 1 December 2017 for ‘meralgia paresthetica, left hip, resulting from long-term sitting as required by my occupation, condition now limits my ability to sit and work at a regular work station.’ He said that the cause of his condition was ‘long term sitting at a desk/workstation for my occupation leading to nerve compression in left hip area’.
On 17 January 2018 the Applicant was assessed by Dr Sandra McBurnie, an Occupational Physician. In her report dated 29 January 2018 she stated as follows:
The current presumptive diagnosis is meralgia paraesthetica or lateral femoral cutaneous nerve entrapment.
...
In my opinion while Mr Williamson is required to sit at work, there is nothing specific about the nature of the sitting required or the work tasks required that suggest that work is a major contributing factor to the development of the condition.
...
He has what appears to be a posture-related nerve entrapment. While it occurs with sitting, it would occur with sitting in any capacity. It was first noted in 2013 when on a long distance car trip, and he has noted discomfort when sitting at home watching television for example as well as when sitting at work.
...
It is unlikely that the condition is due to work-related factors. It is likely that he would be experiencing symptoms with sitting in any environment following the onset of symptoms while driving in 2013.
He experiences symptoms at work because he does not change posture as he does outside of work when the hip becomes “irritable”. In my opinion this does not equate to the condition being caused by work.
On 20 October 2018 Professor Orchard wrote a further letter to Dr McLearie in which he said:
I reviewed Mark Williamson regarding his mystery lateral hip/thigh pain, which we think is meralgia paresthetica. The diagnosis is probably 70-75% established but still a bit uncertain with the main differential being lumbar nerve root impingement (or possibly hip impingement). If either of the latter is the diagnosis, it is probably related to prolonged sitting at work either way.
Subsequently the Applicant was assessed at the request of the Respondent by Dr John O’Neill, consultant neurologist, who stated in his report dated 31 October 2018:
I agree with Professor Orchard only with respect to his statement that Mr Williamson has ‘mystery lateral hip pain associated with prolonged sitting’.
I completely disagree with the diagnosis of entrapment of the left lateral cutaneous nerve of the thigh (left meralgia paraesthetica) as described by Professor Orchard. In fact, I can identify no neurological basis for this mystery pain.
The pain is outside the normal distribution of the lateral cutaneous nerve of the thigh. It is not a superficial pain as would be typical of meralgia paraesthetica. Sensory testing was normal in the territory of the left lateral cutaneous nerve of the thigh....
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To confirm my statement that this is not an entrapment of the left lateral cutaneous nerve of the thigh, I would suggest you arrange nerve conduction studies at the Neurophysiology Department at Royal Prince Alfred Hospital and I would expect that the sensory action potential from the left lateral cutaneous nerve of the thigh would be present and probably roughly equal to that on the right.
In March 2019 the Applicant attended the neurophysiology department at Royal Prince Alfred Hospital where he underwent Electromyography (‘EMG’) testing. Dr Carcel and Dr Davies reported that on clinical examination ‘there is no well delineated region of sensory change in the area supplied by the left lateral femoral cutaneous nerve.’ They went on to say that ‘this is unusual for meralgia paresthetica’.
Dr O’Neill provided a supplementary report on 29 March 2019 after reviewing the results of the EMG tests and noted that the clinical opinions of Dr Carcel and Dr Davies supported the opinion in his previous report of 31 October 2018.
In May 2019, having had the benefit of reviewing Dr O’Neill’s report, Professor Orchard wrote to Dr McLearie and stated as follows:
I would agree entirely with John O’Neill that Mark does not have a rip-roaring blatant meralgia parasthetica of an undeniable status. Where we would probably disagree is that I am more open to the diagnosis of a subtle version of the same condition, but almost by definition the subtle version is unprovable without actually going to the extreme of operating on the problem. I certainly respect the position that a non-provable diagnosis has not been proven, but where I would disagree is that a non-proven diagnosis therefore cannot be present ... I would concede that a neurologist has more specific expertise in nerve disorders...
Professor Orchard also stated that he believed the Applicants injury to be work related and caused by prolonged sitting.
On 27 June 2019, Mr Robotham wrote a letter which referred to his treatment of the Applicant from 29 August 2017 and stated as follows:
By the time I started to treat Mark, he did not have any obvious leg pain ... On testing he showed signs of hip impingement, overactive TFL and rectus femoris muscles, and weak gluteus medius bilaterally, but worse on the left ... On palpation Mark was tender and tight around his TFL, gluteus medius, and iliopsoas when compared to the left. At the time I could not find any obvious signs of Meralgia Paresthetica, and I still have not seen and clinical signs.
EVIDENCE AT HEARING
At the hearing the Tribunal had the benefit of oral evidence from the Applicant, Professor Orchard and Dr O’Neill.
I found the Applicant to be an entirely truthful witness and I accept his evidence that he has suffered from continual pain over a long period, possibly as early as 2007 when he was first diagnosed with arthritis. Although over the years he has had some relief, for example by following a series of exercises prescribed by his physiotherapist, the relief was temporary and the pain tended to come back. The symptoms abated when he was not required to sit for long periods of time. He outlined the history of his hip and knee pain, much of which is outlined above. His discomfort and pain had been ameliorated in recent times by changes at his workplace.
Dr John Orchard, a sports physician, gave evidence that prolonged sitting in a compressed position for long periods could put stress on nerves and result in pain. He said that although meralgia paresthetica was not a certain diagnosis, he felt it was a good diagnosis – in any event he was unable to think of a better one. He felt that diagnosis of ongoing pain could be part of a ‘continuing rather than a binary diagnosis’.
Dr Orchard disagreed with Dr O’Neill and said that neurologist’s were ‘very systems based’ whereas sports medicine works across all fields and is more fluid.
Dr Orchard gave evidence that he thought that the Applicant’s work was a substantial contributing factor at the time the diagnosis was made.
Under cross-examination, Dr Orchard stated that there could be multiple possible causes of the Applicant’s pain and that in sports medicine it was not possible to be always certain about a diagnosis. He agreed that buttock and hamstring pain was not consistent with a diagnosis of meralgia paresthetica.
In his oral evidence Dr O’Neill, a neurophysiology specialist and consultant since 1987, referred to his various reports. Dr O’Neill was quite emphatic in his evidence that meralgia paresthetica never affects the area below the knee or above the pelvis and gave a demonstration of the area affected by meralgia paresthetica. He was quite clear that the Applicant did not have meralgia paresthetica and noted that his symptoms were inconsistent with a diagnosis of meralgia paresthetica in that his pain was not ‘at skin level’. Dr O’Neill said that meralgia paresthetica is only ever related to pain at skin level. He referred to the physiotherapy report of 23 September 2010 noting that the pain areas suffered by the Applicant were not consistent with meralgia paresthetica. Dr O’Neill disagreed with Dr Orchard about the appropriateness of looking at the effect of the injections the Applicant had undertaken as treatment in determining whether or not the Applicant suffered from meralgia paresthetica.
Dr O’Neill’s conclusions were supported by the report of Dr Carcel and Dr Davies and the results of the EMG dated 18 March 2018.
Under cross-examination from the Applicant, Dr O’Neill said that people with meralgia paresthetica all describe similar symptoms and that these symptoms settled down in a period of weeks or months. Dr O’Neill stated clearly that the only thing that was certain in relation to the Applicant was that he did not have meralgia paresthetica. He also stated that whatever conditions the Applicant was suffering from had no overlap with meralgia paresthetica.
When presented with evidence from the Applicant’s physiotherapist who treated him in 2010, obtained by the Respondent under summons, which showed shaded areas on a body diagram in which the Applicant said he was experiencing pain at that time, Dr O’Neill said that those areas were inconsistent with a diagnosis of meralgia paresthetica.
Dr O’Neill stated that the most important thing in medicine is diagnosis, and that if there is no diagnosis it is only possible to deal with the symptoms. In the Applicant’s case, Dr O’Neill noted that no one had been able to determine the source of his pain. The fact that he had responded to injections given by Professor Orchard was in Dr O’Neill’s view not determinative of any medical condition, particularly as injections can work or not work for a range of reasons including a ‘placebo’ effect.
Dr O’Neill gave evidence that in his experience, many patients experience pain but do not have any specific diagnosis as to the cause. When asked by the Applicant whether there could be overlapping conditions, Dr O’Neill said that whether that was the case or not, there was no overlap of symptoms in the Applicant’s case consistent with meralgia paresthetica. Dr O’Neill accepted the Applicant’s comment that sports physicians often deal with a range of non-specific conditions.
DISCUSSION
To succeed in his claim the Applicant must first establish that he is suffering from either a disease (defined as an ‘ailment’ in section 5B of the Act), or an injury (other than a disease).
The strongest evidence to support the Applicant’s claim that he had an ailment is the evidence from Professor Orchard who says:
I would agree entirely with John O’Neill that Mark does not have a rip roaring blatant meralgia paresthetica of undeniable status. Where we would probably disagree is that I am more open to the diagnosis of a subtle version of the same condition, but almost by definition a subtle version is in provable without actually going to the extreme of operating on the problem. I certainly respect the position that a non-provable diagnosis has not been proven, but where I would disagree is that a non-proven diagnosis therefore cannot be present… I would concede that a neurologist has more specific expertise in nerve disorders….
Dr O’Neill, who is a highly qualified specialist neurologist with many years of experience treating patients with meralgia paresthetica, gave clear evidence that whatever the Applicant is suffering from, it is not meralgia paresthetica. His evidence was strongly supported by corroborating evidence from two other specialist neurologists Dr Carcel and Dr Davies who conducted EMG testing on the nerve in question and subsequently reported that ‘there is no well delineated region of sensory change in the area supplied by the left lateral femoral cutaneous nerve. This is unusual for meralgia paraesthetica’.
This opinion was also supported by the report of Mr Robotham (who did not appear for cross-examination at the hearing but whose report was accepted as part of the evidence) who relevantly stated in his report of 27 June 2019:
I could not find any obvious signs of meralgia paresthetica and I still have not seen any clinical signs.
In the case of Comcare v Mooi (1996) 69 FCR 430, Drummond J stated at 442 that:
……..before an employee can have any entitlement to compensation under section 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease.
His Honour goes on to discuss the meaning of the words ‘injury’ and ‘disease’ by reference to the meaning of those words in ordinary language.
It is quite clear from the evidence before the Tribunal that the Applicant has had pain from as far back as 2007 when it was first thought to be caused by arthritis. In 2010 he suffered a period of major pain which was felt to be associated with long periods of sitting. It is significant that in a report dated 23 September 2010, Mr Cowap shaded certain areas on a diagram of the body where the Applicant was said to be experiencing pain. Dr O’Neill gave evidence that those locations were not areas which would be associated with a diagnosis of meralgia paresthetica.
The evidence shows quite clearly that the Applicant continued to experience pain and continues to experience pain up to the present. The pain appears to have waxed and waned and also to have shifted locations over time. There is no doubt that the Applicant experienced pain at work, especially if he was sitting for long periods of time, and that a change in his workplace configurations resulted in the amelioration of his symptoms. The fact that the Applicant suffered pain in various parts of the body, over a long period of time was not disputed by the Respondent nor any of the medical professionals who gave evidence. The difficulty is that there was no diagnosis of the cause of the pain. In fact the only clear medical evidence was that the pain was not caused by meralgia paresthetica.
Without a diagnosis as to the cause of the Applicants pain which has continued for a period in excess of 10 years it is impossible to say that the Applicant’s employment either caused or contributed to the underlying condition. It is possible only to conclude that symptoms persisted, to varying degrees of intensity, throughout the period of the Applicant’s employment with the Australian Border Force. Subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, is simply insufficient to meet the requirements of the Act.
There is direct High Court authority in the case of Military Rehabilitation and Compensation Commission v May [2016] HCA 19. This was an appeal from the Full Court of the Federal Court in which the High Court considered the meaning of section 14 of the Act and consequentially the meaning of the word ‘injury’ in sections 5A and 5B of the Act. The High Court explained at [57] when considering the conclusion of the Full Court that the relevant inquiry to be made was whether the person has experienced a physiological change:
…To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient….. that conclusion should be rejected.
Again, detailed consideration of the evidence of the Applicant and the evidence of all of the health professionals involved in the treatment of the Applicant over time does not result in a diagnosis of any specific physiological change, but merely confirms the ongoing symptoms of pain over a long period of time, including time spent at work.
It follows that it has not been established that the Applicant suffers from an ‘ailment’ in accordance with section 5B of the Act.
The evidence does not support, and it was not contended, that the Applicant has suffered an injury (other than a disease) in accordance with section 5A of the Act.
DECISION
The decision of the Respondent’s delegate dated 24 April 2018 declining liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for meralgia paresthetica is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
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Associate
Dated: 18 November 2019
Dates of hearing: 19 & 20 September 2019 Applicant: In person Counsel for the Respondent: Mr M Snell Advocate for the Respondent: Mr A Ghaleb Solicitors for the Respondent: Lehmann Snell Lawyers
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