Williamson and Comcare (Compensation)

Case [2019] AATA 4774

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

  1. 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

  2. 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.

  3. 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…..

  4. 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

  5. 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

  6. The Applicant commenced employment with the Australian Border Force in April 1991.

  7. 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…

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Details
AGLC
Williamson and Comcare (Compensation) [2019] AATA 4774
Case
[2019] AATA 4774
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Williamson and Comcare (Compensation). The applicant, who commenced employment with the Australian Border Force in 1991, claimed to have suffered from meralgia paresthetica, a condition involving nerve entrapment or compression in the thigh, which he attributed to prolonged sitting at his workstation. He sought compensation for this ailment.

The Tribunal was required to determine whether the applicant had suffered from meralgia paresthetica or an aggravation of such an ailment, whether his employment contributed to this condition to a significant degree, and if the ailment had since been resolved. The applicant's own evidence suggested a history of hip pain dating back to at least 2007, with a specific increase in discomfort during a long driving trip in 2013. Medical investigations, including X-rays, ultrasounds, and MRIs, yielded various findings such as femoracetabular impingement and mild trochanteric bursitis, but no definitive diagnosis of meralgia paresthetica. Expert evidence was presented by a physiotherapist, a sports physician, and a neurophysiology specialist, with differing opinions on the diagnosis and its consistency with the applicant's reported symptoms.

The Tribunal found that the applicant was a truthful witness and accepted his evidence of continuous pain, which was temporarily ameliorated by exercises and changes to his work environment. However, the Tribunal noted that medical evidence did not support a diagnosis of meralgia paresthetica. Specifically, the neurophysiology specialist was emphatic that the applicant's symptoms were inconsistent with this diagnosis, particularly regarding the location and nature of the pain. The Tribunal also considered that the applicant's pain pattern, including buttock and hamstring pain, was not typical of meralgia paresthetica.

Consequently, the Tribunal affirmed the decision of Comcare's delegate to decline liability for meralgia paresthetica under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), as the evidence did not establish that the applicant had suffered from this specific ailment.

Orders

Orders of the court

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Background

Background to the litigation

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)’.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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