Wincott-Whyte and Comcare (Compensation)

[2018] AATA 1631

Wincott-Whyte and Comcare (Compensation) [2018] AATA 1631 (7 June 2018)

Division:GENERAL DIVISION

File Numbers:         2017/1986

2017/3862

2017/4823

Re:Carol Wincott-Whyte

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member L M Gallagher

Date:7 June 2018

Place:Perth

The decisions under review dated:

(a)8 June 2017 (Application 2017/3862);

(b)28 July 2017 (Application 2017/4823); and

(c)7 February 2017 (Application 2017/1986)

are affirmed.

....[sgd]....................................................................

Member L M Gallagher

CATCHWORDS

COMPENSATION – Commonwealth employee – aggravation of neck sprain and aggravation of sprain of shoulder & upper arm (bilateral) – whether liable under section 16 and section 19 – whether suffers from ailment – section 14 determinations remain in force - decisions under review affirmed

COMPENSATION – Commonwealth employee – bilateral carpal tunnel syndrome – whether bilateral carpal tunnel syndrome contributed to, to a significant degree, by employment - decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 5A, 5A(1), 5B, 5B(1)(a), 7(4), 14, 14(1) 16, 19, 37

CASES

Comcare and Reardon (2015) 148 ALD 356; [2015] FCA 1166
Comcare v Mooi (1996) 137 ALR 690
Re Cross and Comcare [2018] AATA 52
Re Proudfoot and Comcare (2008) 107 ALD 701
Re Ross Catanzariti and Comcare [2004] AATA 1006
Re Vo and Comcare [2005] AATA 773

Telstra Corporation Limited v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Member L M Gallagher

7 June 2018

BACKGROUND

1. The present matter is comprised of three applications before this Tribunal, arising from two claimed physical conditions; one of which liability has previously been accepted by Comcare.

   General

2. Ms Wincott-Whyte commenced employment with the Department of Human Services (“the Department”) on 21 May 1987 (refer to, for example, R1, T7, page 19).  During her employment with the Department, Ms Wincott-Whyte has worked in data entry and reception roles and in more recent years as a mail officer.

3. In 2010, there were a number of issues regarding the relationship between Ms Wincott-Whyte and the Department addressed by Ms Wincott-Whyte, her then supervisor and her then manager.  These issues related to matters such as staff meeting attendance, the use of flexi-time and allegations by Ms Wincott-Whyte of inappropriate discussions being had about her by Departmental employees in her absence.

   Initial claim - Aggravation of neck, shoulders and upper arm condition

4. On or around 25 August 2010, Ms Wincott-Whyte suffered an injury to her shoulders and neck, described by her as “swelling over shoulders, upper trap area with neck spasm” (R2, T15, page 71), which Ms Wincott-Whyte claimed was caused by repetitive work, an increase in workload, the repetitive action of slicing mail open and sitting in the same position in a cramped space (R2, T15, page 73).

5. Following the injury Ms Wincott-Whyte claimed to have suffered on or around August 2010, Ms Wincott-Whyte returned to work on a graduated return to work plan (“GRTWP”), undertaking modified work duties during reduced working hours.  The GRTWP was overseen by Dr Debbie Roberts, General Practitioner and by her rehabilitation provider.

6. Correspondence between Ms Wincott-Whyte and her then supervisor indicates that in 2011, Ms Wincott-Whyte perceived different standards of treatment between herself and her colleagues and tension had arisen as a result.  For example, see a record of the meeting held on 3 March 2011 (R2, T16, page 80).

7. On 28 April 2011[1], Ms Wincott-Whyte lodged a claim for compensation to Comcare regarding the injury she claims to have suffered on or around 25 August 2010 (R2, T15) (“Claim no. 551728/3”).

   [1] The parties agree that in the eight month period between Ms Wincott-Whyte suffering from her claimed injury and lodging her related claim for compensation, she used personal leave and long service leave that had accrued and that was available to her.

8. On 8 July 2011, Comcare accepted liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”) for Ms Wincott-Whyte’s injury suffered on 25 August 2010, which it characterised as “aggravation of neck sprain and aggravation of sprain of shoulder & upper arm (bilateral)” (“aggravation of neck, shoulders and upper arm condition”) (R2, T18).

9. Following Comcare’s acceptance of liability for Ms Wincott-Whyte’s aggravation of neck, shoulders and upper arm condition, medical certificates were periodically issued. Ms Wincott-Whyte’s employment and her GRTWP continued and Comcare issued numerous determinations accepting liability under section 16 of the SRC Act for Ms Wincott-Whyte’s related medical treatments. Ms Wincott-Whyte returned to pre-injury duties on 8 August 2016 and her rehabilitation program closed on 12 September 2016 (R2, T173, page 638), with some of her medical expenses continuing to be paid following closure of the program.

   Subsequent symptoms

10. In or around April 2015, Ms Wincott-Whyte reported that she had started to experience symptoms of soreness (to movement and to touch) in her left wrist, and was assessed as unfit for duty.  Ms Wincott-Whyte was subsequently placed off work, returning to work in or around May 2015.

11. Later, in December 2015, Ms Wincott-Whyte complained of difficulty with both wrists, including tingling and numbness into the fingers and thumb.  On 31 December 2015, Ms Wincott-Whyte reported issues removing staples from documents and performing document preparation tasks.

12. On 18 January 2016, a workplace meeting was held to address Ms Wincott-Whyte’s reported concerns regarding her wrists.

13. Ms Wincott-Whyte reported an increase in her right shoulder symptoms in early 2017, which she said was triggered by the introduction of new tasks within her role at that time.  Accordingly, Ms Wincott-Whyte was certified as unfit for work from 25 January 2017 to 5 March 2017, with reduced hours to 24 March 2017.

    Subsequent claim - Bilateral carpal tunnel syndrome

14. On 29 September 2016, Ms Wincott-Whyte lodged a claim for compensation for “wrists Rt/Left, carpal tunnel both wrists,” (received by the Department of Human Services on 17 October 2016) which she claimed was caused by “1. Heavy workload, long week and extra work, pain Rt arm into wrist 2015 2. Doc prep plus 2 basket [sic] of work.  Left swollen wrist, numbness into fingers, 3. Both wrists, doing doc prqoration [sic]” (R1, T7, page 17) (“Claim no. 551728/4”).

15. On 14 November 2016, Ms Wincott-Whyte amended her claim form for her bilateral carpal tunnel syndrome (referred to at paragraph 14 above) such that the date of injury was now recorded as 28 April 2015, with “flare ups” having occurred on 23 May 2016 and 7 January 2016 (R1, T12.1, page 395).

    Subsequent determinations

    Aggravation of neck, shoulders and upper arm condition – Claim no. 551728/3

16. On 12 April 2017, a Comcare delegate determined that it was not liable to pay compensation to Ms Wincott-Whyte under section 19 of the SRC Act in relation to her aggravation of neck, shoulders and upper arm condition for incapacity spanning the period 23 January 2017 to 24 March 2017 (R2, T189, page 688). Ms Wincott-Whyte sought review of the determination dated 12 April 2017 (R2, T192, pages 693 to 698).

17. On 8 June 2017, a Comcare delegate affirmed the determination dated 12 April 2017 that it was not liable to pay compensation to Ms Wincott-Whyte under section 19 of the SRC Act in relation to her aggravation of neck, shoulders and upper arm condition for incapacity spanning the period 23 January 2017 to 24 March 2017 (“reviewable decision no. 1”) (R2, T200, page 736).

18. On 1 June 2017, a Comcare delegate determined that Ms Wincott-Whyte had no present or future entitlement to compensation under sections 16 and 19 of the SRC Act in relation to her aggravation of neck, shoulders and upper arm condition (R2, T198, page 724 and R3, T29, page 125). The determination states that it “…supersedes any previous determination issued prior to the date of this determination” (R2, T198, page 725).  Ms Wincott-Whyte sought review of the determination dated 1 June 2017 ( R2, T200, page 740).

19. On 28 July 2017, a Comcare delegate affirmed the determination dated 1 June 2017 that Ms Wincott-Whyte had no present or future entitlement to compensation under sections 16 and 19 of the SRC Act in relation to her aggravation of neck, shoulders and upper arm condition (“reviewable decision no. 2”) (R3, T32, page 137).

    Bilateral carpal tunnel syndrome – Claim no. 551728/4

20. On 6 December 2016, a Comcare delegate denied liability under section 14 of the SRC Act for Ms Wincott-Whyte’s carpal tunnel syndrome, which it characterised as “bilateral mild carpal tunnel syndrome” (bilateral “CTS”) (R1, T17, page 434).  Ms Wincott-Whyte’s legal representatives sought review of the determination dated 6 December 2016 (R1, T21, pages 442 and 443).

21. On 7 February 2017, a Comcare delegate affirmed the determination dated 6 December 2016 denying liability under section 14 of the SRC Act for Ms Wincott-Whyte’s bilateral CTS (“reviewable decision no.3”) (R1, T27, page 460).

    Applications before this Tribunal

    Application 2017/3862 – denial of liability under section 19 of the SRC Act for aggravation of neck, shoulders and upper arm condition from 23 January 2017 to 24 March 2017

22. On 29 June 2017 (received by the Tribunal on 30 June 2017), Ms Wincott-Whyte applied to the General Division of the Administrative Appeals Tribunal (“Tribunal”) for review of reviewable decision no. 1 (R2, T1, pages 1 and 2). In her application, Ms Wincott-Whyte states that she considers reviewable decision no. 1 to be wrong on the basis that (R2, T1, page 2):

    The increase in workload, repetitive nature of tasks, doc preparation, the introduction of the new task of writing up of boxes contributed to a [sic] exacerbation of my condition.  Being aggravation of neck sprain and aggravation of sprain of shoulder and upper arm/ bilateral dated 25.08.10.  A new task of writing of boxes involved overhead reaching carrying down of boxes weighing 3 to 4kg.  Going through batches and arranging in numeric order and writing up box and placing back onto shelves. I feel this task contributed to by bursitis. I had restricted movement and pain. I let OHS know on 05.12.17 and a foot stool was introduced.  Workload also increased bags from 1 x 10kg, 3 x 16kg. The repetitive nature of doc preparation increasz [sic] the symptoms [sic] my neck, shoulders, arms and wrist become sore during this period. I needed time off to help improve symptom [sic].

    Application 2017/4823 - no present or future entitlement to compensation under sections 16 and 19 of the SRC Act in relation to aggravation of neck, shoulders and upper arm condition

23. On 7 August 2017, Ms Wincott-Whyte applied to the Tribunal for review of reviewable decision no. 2 (R3, T1, pages 1 and 2).  In her application, Ms Wincott-Whyte states that she considers reviewable decision no. 2 to be wrong as follows (R3, T1, page 2):

    I feel the decision is wrong and different compared to all other treating professionals. eg [sic] Surgeon Dr Lawson-Smith, physio Julian Bowen and GP Dr Debbie Roberts.  Dr Matte’s [sic] focused on psychosocial factors and no focus on the compensable physical injury.  Dr Mattes never mentioned the new tasks of reaching above head while writing up boxes.  The sudden increase in the tub run bags weighing 16kg x 3 and the repetitive nature of document preparation.  These tasks contributed to increase in symptoms and bursitis, neck shoulder and wrist pain.

    Application 2017/1986 – denial of liability under section 14 of the SRC Act for bilateral carpal tunnel syndrome

24. On 6 April 2017, Ms Wincott-Whyte applied to the Tribunal for review of reviewable decision no. 3 (R1, T1, pages 1 and 2).  In her application, Ms Wincott-Whyte states that she considers reviewable decision no. 3 to be wrong as follows (R1, T1, page 2):

    I feel the decision is wrong and Dr Floyd [sic] report is different compared to all other treating professionals, [sic] Surgeon and OT.  My job is repetitive introduction of new task Document [sic] preparation using wrist to remove staples stick tape[s] and at time[s] heavy workload caused numbness and pain in wrist.  When away from work symptoms settle and disappear.  There are many other staff at my workplace with carpal tunnel.

    RELEVANT LEGISLATION

25. Subsection 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, as follows:

    14   Compensation for injuries

    (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.  

26. The necessary connection between a condition suffered by an employee and the employment is provided for, indirectly, by the definitions of “injury” and “disease” in the SRC Act. Subsection 5A(1) of the SRC Act defines the term “injury” as follows:

    5A   Definition of injury   

    (1)       In this 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;…

27. The term “disease” is defined in section 5B of the SRC Act as follows:

    5B    Definition of disease

    (1)       In this 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.

    (2)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.

    (3)In this Act:

    significant degree means a degree that is substantially more than material.

28. The term “ailment,” which is used in subsection 5B(1)(a) of the SRC Act is defined in subsection 4(1) of the SRC Act to mean “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” Subsection 4(1) of the SRC Act also provides the definition of the term “aggravation” to include “acceleration or recurrence.”

    ISSUES

    Applications 2017/3862 and 2017/4823

29. The issue for the Tribunal in relation to Application 2017/3862 is whether Comcare is liable to pay Ms Wincott-Whyte compensation pursuant to section 19 of the SRC Act in respect of her aggravation of neck, shoulders and upper arm condition from 23 January 2017 to 24 March 2017.

30. The issue for the Tribunal in relation to Application 2017/4823 is whether Comcare is liable to pay Ms Wincott-Whyte compensation pursuant to sections 16 and 19 of the SRC Act in respect of her accepted aggravation of neck, shoulders and upper arm condition.

31. Therefore, the issues at paragraphs 29 and 30 above in turn require the Tribunal to consider:

    (a)whether Ms Wincott-Whyte suffered from (or continues to suffer from) an “ailment” as defined in subsection 4(1) of the SRC Act at the relevant times? And if so,

    (b)whether that ailment is an “injury” as defined in section 5A of the SRC Act, being either:

    (i)a “disease” (subsection 5A(1)(a) of the SRC Act, as defined in subsection 5B(1) of the SRC Act, being an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by Ms Wincott-Whyte’s employment with the Department); or,

    (ii)an injury or an aggravation of an injury (other than a disease) arising out of, or in the course of, Ms Wincott-Whyte’s employment with the Department, as defined in subsections 5A(1)(b) and 5A(1)(c) of the SRC Act.

32. The Tribunal notes that it is only when it is established that there is a compensable injury under section 14 of the Act that sections 16 and 19 of the Act fall for consideration. As the Tribunal has concluded below that it does not have sufficient evidence before it to find that Ms Wincott-Whyte suffered from, or continues to suffer from an ailment, as defined (or an aggravation of an ailment), at the relevant times, the Tribunal has not addressed the legislation nor considered the issues relevant to:

    (a)whether Ms Wincott-Whyte’s employment with the Department significantly contributed to her ailment, and if so, the date of injury; and

    (b)whether any liability may otherwise arise under:

    (i)section 19 of the SRC Act, from 23 January 2017 to 24 March 2017 (Application 2017/3862); or

    (ii)sections 16 and 19 of the SRC Act, from 1 June 2017 onwards (being the date of the original determination) (Application 2017/4823).

    In the circumstances, the Tribunal considers it is not required to do so. For completeness, the Tribunal also finds that in respect of the Applicant’s aggravation of neck, shoulders and upper arm condition, this is not an injury simpliciter within the meaning of s 5A(1) of the SRC Act. Nevertheless, the Tribunal has set out the facts and the oral evidence as they relate to matters regarding Ms Wincott-Whyte’s employment and to sections 16 and 19 of the SRC Act in order to preserve the chronology and completeness of the factual picture.

    Application 2017/1986

33. The issue for the Tribunal in relation to Application 2017/1986 is whether Comcare is liable to pay Ms Wincott-Whyte compensation pursuant to section 14 of the SRC Act in respect of her bilateral CTS.

34. The issue at paragraph 33 above in turn requires the Tribunal to consider:

    (a)whether Ms Wincott-Whyte suffers from an “ailment” as defined in subsection 4(1) of the SRC Act, at the relevant time?

    (b)whether that ailment is an “injury” as defined in section 5A of the SRC Act, being either:

    (i)a “disease” (subsection 5A(1)(a) of the SRC Act, as defined in subsection 5B(1) of the SRC Act, being an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by Ms Wincott-Whyte’s employment with the Department); or,

    (ii)an injury or an aggravation of an injury (other than a disease) arising out of, or in the course of, Ms Wincott-Whyte’s employment with the Department, as defined in subsections 5A(1)(b) and 5A(1)(c) of the SRC Act.

    EVIDENCE

35. The matter was heard in Perth on 6 and 7 February 2018.  Ms Wincott-Whyte appeared in person and was self-represented.  Comcare was represented by Counsel, Ms Jessica Henderson.  Ms Henderson was instructed by Ms Carmen Basilicata from Sparke Helmore Lawyers.

    Evidence before the Tribunal

36. The Tribunal received the following evidence:

    ·Witness statement of Ms Wincott-Whyte filed on 3 November 2017, with attachments (“A1”);

    ·Ms Wincott-Whyte’s Statement of Facts, Issues and Contentions (Application 2017/1986), filed on 3 November 2017, with attachments (“A2”);

    ·Ms Wincott-Whyte’s Statement of Facts, Issues and Contentions (Application 2017/4823), filed on 3 November 2017 (“A3”);

    ·Ms Wincott-Whyte’s Statement of Facts, Issues and Contentions (Application 2017/3862), filed on 3 November 2017, with attachments (“A4”);

    ·Ms Wincott-Whyte’s submissions in reply to Comcare’s Statement of Facts, Issues and Contentions, filed on 12 January 2018 (“A5”);

    ·Ms Wincott-Whyte’s documents in support of A5, filed on 12 January 2018 (“A5(a)”);

    ·Ms Wincott-Whyte’s further documents in support of A5, filed on 12 January 2018 (“A5(b)”);

    ·Ms Wincott-Whyte’s timeline of events, with attachments, filed on 3 November 2017 (“A6”);

    ·medical records from Dr Debbie Roberts, General Practitioner and from Ellenbrook Medical Centre, filed by Ms Wincott-Whyte on 3 November 2017 in support of A6 and in support of Ms Wincott-Whyte’s various statements (“A7”);

    ·Initial Assessment Report by Ms Taryn Busby, Occupational Therapist/Operations Manager (PeopleSense), dated 16 August 2012 and filed on 3 November 2017 (“A8”);

    ·a 462 page set of T-Documents (T1 – T28) in  Application 2017/1986 (“R1”);

    ·a 1131 page set of T-Documents (T1 – T210, 2 volumes) in Application 2017/3862 (“R2”);

    ·a 141 page set of T-Documents (T1 – T33) in Application 2017/4823 (“R3”); and

    ·Comcare’s Statement of Facts, Issues and Contentions dated and filed on 4 December 2017 (Applications 2017/1986, 2017/3862, 2017/4823) (“R4”).

    Specialist medical evidence before the Tribunal

1. At hearing, oral evidence was given by five medical witnesses. The medical witnesses’ reports were provided prior to the hearing and are contained wholly within the T-Documents and within the attachments to Ms Wincott-Whyte’s various written submissions, as follows:

   ·Ms Kara Cepo, Occupational Therapist, HandWorks Occupational Therapy who provided the following reports:

   oReport dated 10 November 2016 (A2, page 13 of attachments);

   oReport dated 6 December 2016 (A2, page 14 of attachments);

   oReport dated 27 September 2017 (A2, page 15 of attachments); and

   oReport dated 18 September 2017 (A2, page 16 of attachments).

   ·Dr Debbie Roberts, General Practitioner, who provided the following referrals, reports and consultation notes:

   oReferral dated 7 September 2016 (R1, T5, page 12);

   oReport dated 15 December 2010 (R2, T12, page 63);

   oReport dated 22 June 2011 (R2, T17, page 86); and

   oConsultation notes (A7 and R1, T8, pages 21 to 29).

   ·Dr Mark Floyd, Consultant Occupational Physician, who provided the following report:

   oReport dated 25 November 2016 (R1, T14, pages 405 to 419 and R3, T19, pages 76 to 90).

   ·Dr Joel Silbert, Consultant Occupational Physician, who provided the following reports:

   oReport dated 23 October 2012 (R3, T8, pages 30 to 40);

   oReport dated 4 April 2016 (R3, T14, pages 54 to 67); and

   oSupplementary report dated 28 April 2016 (R3, T15, pages 68 to 70).

   ·Dr Eugen Mattes, Consultant Occupational Physician and Epidemiologist, who provided the following reports:

   oReport dated 16 March 2017 (R2, T185, pages 670 to 682 and R3, T25, pages 98 to 110); and

   oSupplementary report dated 29 May 2017 (R2, T196, pages 712 to 715 and R3, T27, pages 113 to 116).

2. Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.  Relevant aspects of the evidence are referred to below.

   Oral evidence at hearing

   Ms Wincott-Whyte

3. At the hearing, Ms Wincott-Whyte gave oral evidence to the Tribunal in person, including during cross-examination by Ms Henderson.  Ms Wincott-Whyte had earlier provided a statement dated 3 November 2017 (A1).  The Tribunal notes that Ms Wincott-Whyte’s various written submissions (A2, A3, A4, A5) and her timeline of events (A6) do, in part, contain statements that in substance could also be regarded as Ms Wincott-Whyte’s evidence and will treat those statements as such where relevant.

4. Ms Wincott-Whyte gave evidence before the Tribunal that the amendments of the dates originally recorded in her claim for compensation form in relation to her bilateral carpal tunnel syndrome (refer to R1, T12.1 at page 396 and to paragraph 15 above) were “flare ups” and she needed to find the “actual injury date,” which was 28 April 2015.  Ms Wincott-Whyte said that she was unsure if the amendments to the form were made at the same time that she originally completed the claim form, noting that the claim form was lodged on 29 September 2016 (R1, T12.1, page 395).

5. As to the handwritten note on the claim form that states “email Mala 30.04.15,” Ms Wincott-Whyte said that this note refers to an email she sent on 30 April 2015 to advise “Mala” that she “wasn’t going to do the tub run that day” (having first noticed her symptoms/injury the previous day).  When asked whether she had made that handwritten note when she originally completed the claim form, Ms Wincott-Whyte said that she couldn’t remember that note, nor did she attach the email in question to the related claim form.

6. When asked to confirm whether she was employed anywhere else at the time of her bilateral wrist injury (as indicated in Ms Wincott-Whyte’s answer to question 16 in R1, T12.1 at page 396), Ms Wincott-Whyte stated that she was never employed anywhere else (other than the Department).

7. When asked to elaborate on Dr Roberts’ note relating to her consultation with Ms Wincott-Whyte on 10 February 2016 which states “at work still at mail room, has been told option to move her still there” (R1, T8, page 24), Ms Wincott-Whyte said that there had been an option to move and her occupational therapist was looking at other options.  Ms Wincott-Whyte said that the mailroom was closing and “there was nothing else around.”  Ms Wincott-Whyte said in regard to the note above that to add a comma after “option to move her” on the clinical note changes the meaning to what Ms Wincott-Whyte’s understanding of that sentence is.

8. When referred to her reconsideration request dated 31 May 2016 (R2, T157 at page 573) of the Department’s determination dated 22 April 2016 that she undertake a rehabilitation program pursuant to section 37 of the SRC Act, and the references in that document to issues she had had with Rebecca Pryc, Ms Wincott-Whyte said that Ms Pryc was a new supervisor in 2014, and had not had a manager’s role before. Ms Wincott-Whyte said that in 2014, she had had to explain to Ms Pryc that she was on a GRTW and Ms Pryc had then “put her on additional tasks,” so they had “got off on the wrong foot.”

9. Ms Wincott-Whyte added that Ms Pryc had left the Department in July 2016, but “came back recently” in July 2017 when she had similar issues with Ms Pryc again.  Ms Wincott-Whyte said Ms Pryc felt that Ms Wincott-Whyte was questioning her authority. Ms Wincott-Whyte’s occupational therapist came in and spoke to Ms Pryc emphasising the importance of Ms Wincott-Whyte’s return to work program.

10. Ms Wincott-Whyte was referred to the following extract from a report by Mr Julian Bowen, Principal Physiotherapist, dated 12 March 2017 (R2, T184, page 668):

    Her issues [in her neck and shoulders] have also been exaggerated at times by stress/anxiety and poor work satisfaction. Carol has had several different supervisors at work during this process and there have been several times where she reported feeling singled out and bullied by her supervisors…

11. In response to the extract referred to in paragraph 46 above, Ms Wincott-Whyte said that (in addition to Ms Pryc), numerous other supervisors came and went, including Louise Szczepanski (2009 to 2011).  Ms Wincott-Whyte said that she had had “trouble with her.” 

12. Ms Wincott-Whyte also gave evidence that in 2006, she suffered from headaches and had problems with her then supervisor (refer to R2, T5, page 14 regarding her “past experience with [her] supervisor” and “how he already feels about [Ms Wincott-Whyte’s] job knowledge”).  Ms Wincott-Whyte said that on her return from maternity leave in mid-2004 or mid-2005 to two days of work per week at a “level 8,” she felt she needed support regarding job knowledge as she had previously worked as a “level 7.”

13. When asked by Ms Henderson, Ms Wincott-Whyte said that she did not lodge her initial claim regarding her injury of 25 August 2010 (refer to paragraph 4 above) on the basis that she had had trouble with the workers’ compensation process in the past.  Ms Wincott-Whyte said that from 1987, for about ten years, she was “fine” and then began experiencing neck and shoulder pain.  Ms Wincott-Whyte said that there was a culture (within the Department) that supervisors were “not happy” with those people who were “on comp” and so she had used her leave, including long service leave in order to (initially) avoid lodging a claim.

14. Further to her comments in paragraph 49 above, Ms Wincott-Whyte said that the Department then began “reducing staff” and she “had to do more baskets,” “six baskets instead of two,” so she had no choice (in the end) but to lodge a claim.  Ms Wincott-Whyte said that when she was tasked with “six baskets instead of two,” she first experienced “swelling up and extreme pain,” although this was not her first experience of tightness and soreness at work (which was around 1997).  Ms Wincott-Whyte said that she had tried to find ways to cope with these earlier experiences.

15. When referred to the undated witness impact statement provided by Ms Wincott-Whyte’s friend, Faye Burnaby (Attachment to A1), Ms Wincott-Whyte said that she liked sport and had become involved in aqua aerobics through self-management after her first “injury” in 1997.  Ms Wincott-Whyte said that she “did a Cert 3 and 4,” worked as a “PT” and “helped other people” and had started doing health and fitness and strength building in order to cope at work.

16. Ms Wincott-Whyte was then referred to a surgery consultation note recorded by Dr David Hyman on 1 September 2010 (see attachment in A7) and asked why she had gone to see him that day and why him rather than Dr Roberts.  Ms Wincott-Whyte said (while the record refers to ear, nose and throat matters), she can’t recall why she attended Dr Hyman on that date.  Ms Wincott-Whyte added that Dr Roberts works part-time, so she mainly saw Dr Roberts or Dr Patel.  Ms Wincott-Whyte said that she would see Dr Hyman (at a different practice) when no-one else was available.  Ms Wincott-Whyte said that she was told “not to keep changing doctors” and that she did not tell Dr Hyman that she was having problems connected to her workers’ compensation claim because “doctors will tell you to see your usual doctors” in relation to workers’ compensation matters.

17. As to her recollection of events and symptoms since 2010, Ms Wincott-Whyte said that in 2010 she experienced pain in her neck and shoulders, such that, for example she would have to use a heat pack or see a physiotherapist to “release” it.  Ms Wincott-Whyte said that sometimes she felt that the pain was “catching” and that she would have a spasm in her neck. 

18. Ms Wincott-Whyte said that 25 August 2010 was a memorable date as on that date she was sitting alone in reception “having to do multiple baskets” and while doing so experienced pain, especially in her right wrist, but it would settle down. 

19. Ms Wincott-Whyte said that in February 2011 and March 2011, when she “got moved to the mail room,” she experienced pain “on and off” and in 2012, she had experienced “numbness on and off,” which was noted in her occupational therapy reports and in her timeline (A6).  Ms Wincott-Whyte said that while she had “slept in splints” at the time, she did not have to wear the splint all of the time, as the numbness and pain would come and go.

20. Ms Wincott-Whyte said that 28 April 2015 was also a memorable date as she had the “extra bags” to do and experienced extreme shooting pains in her hands and had a sore neck and shoulders. 

21. Ms Wincott-Whyte added that she also recalled an event in October 2016, following the closure of her earlier Comcare claim, where she had been carrying boxes above her head, put them on a trolley, sorted their contents, labelled the box and carried the box and returned it to the shelf.  Ms Wincott-Whyte said that from that task she had started to experience pain in her neck and shoulder and spasms in her wrist.

22. Ms Wincott-Whyte said that in around late November or December 2015, a new document preparation work task was introduced, which required her to use a “slicer” to slice multiple books.  Ms Wincott-Whyte said that prior to this time, this slicing task did not exist in the mailroom.  Ms Wincott-Whyte said that she “started getting sore wrists” from performing this slicing task and saw a doctor at Ellenbrook Medical Centre. 

23. When directed to the consultation note of Dr Sahi Foroughi dated 7 January 2016 (A7), Ms Wincott-Whyte said that those notes must be the notes relating to that appointment (referred to in paragraph 58 above).  Ms Wincott-Whyte said that she had experienced a particularly bad flare up of symptoms that day and had gone to see the doctor after work as she wanted to know what the doctor thought about it.  When asked if it was on this date that the symptoms in her wrists were the worst that they had ever been, Ms Wincott-Whyte said that she “can’t answer that.”  Ms Wincott-Whyte said that she could not recall if she had had the next day off work (being 8 January 2016) but recalled that she had driven herself to her appointment with Dr Foroughi on 7 January 2016, with “no problem.”

24. Ms Wincott-Whyte was referred to the consultation note of Dr Roberts dated 9 January 2016 (A7), which states relevantly and in part:

    had confrontation with supervisor at work…Carol believes this is a personal attack…confrontation regarding duties and hours…supervisor said she could direct her to different department…carol [sic] asked for union rep [sic] to be present and left meeting…was told this was unprofessional and was going to report her…has been doing new procedure doc [sic] prep [sic], this involves removing staples and sticky taping back and front…this has involved more wrist work and flared shoulder pain…not getting postural change…

25. In relation to the matters extracted at paragraph 60 above, Ms Wincott-Whyte said that Ms Pryc had “wanted her to go to the RMU” but “CRS/PeopleSense said not to go.”  Ms Wincott-Whyte said that she could not recall exactly when the confrontation occurred other than she had attended Dr Roberts “fairly urgently” after it happened. 

26. Ms Wincott-Whyte said that the impetus for seeing Dr Roberts on 9 January 2016 had been that she “was not getting her movement tasks in.”  Ms Wincott-Whyte acknowledged that she had not complained of medical soreness to Dr Roberts at her consultation on 9 January 2016 and said that she had made the appointment “a few days before.”

27. When asked if she could recall any times in the past that her symptoms were better or were worse, Ms Wincott-Whyte said that there were times when she worked at reception between 2006 and 2009/2010 where she had felt better, where her tasks were “fine,” she had no flare ups, was pain free and increased her working hours from 15 to 34.5 hours per week.  Ms Wincott-Whyte said that those four years at work from 2006 to 2010 were “good years.”

28. Ms Wincott-Whyte said that there were periods between 2010 and 2016 where she “wasn’t feeling bad,” where she was coping with the use of heat packs, but “not extremely sore.”  Ms Wincott-Whyte said that the “being extremely sore” started again last year (in 2017).

29. When asked about the “flare up” incidents (refer to paragraph 15 above), Ms Wincott-Whyte accepted that the doctor’s appointment associated with the pain she claims to have experienced on 28 April 2015 was her appointment with Dr Roberts on 5 August 2015 (refer to A7 and R1, T8, page 26), which records, relevantly and in part:

    …considerable pain again down shoulder, thru [sic] elbow…now has swelling at wrist with symptoms of carpal tunnel and numbness…if pain worse suggest sign unfit until I return…

30. When directed to records of her consultations with Dr Roberts on 4 May 2015, 13 May 2015, 14 May 2015, 21 May 2015, 29 May 2015, 4 June 2015, 10 June 2015 and 8 July 2015 (A7, pages 12 and 13 of notes and R1, T8, pages 27 and 28), Ms Wincott-Whyte agreed that it was fair to say that during that whole period it was recorded that she experienced a “particularly bad collection of symptoms” and also that it was fair to say that those symptoms were of far greater magnitude than those she experienced at other times.

31. As to her headaches she claims to have suffered in 2006 (refer to paragraph 48 above), Ms Wincott-Whyte was taken to a report by Dr J L Pearce, Specialist Physician in Occupational and Rehabilitation Medicine (R2, T3, pages 4 to 10), which included discussion of treatment for her migraine headaches as follows (R2, T3, page 9):

    Appropriate migraine therapy has been recommended and prescribed by her Neurologist.

    Ms Wincott-Whyte presented as a pleasant but slightly anxious woman who may benefit by referral to your EAP for counselling and would also benefit by further and ongoing training…

32. In relation to the extract from Dr Pearce’s report at paragraph 67 above, Ms Wincott-Whyte said that she attended an EAP session to discuss “reducing her (stress) levels” and how she felt about that.  Ms Wincott-Whyte said “they told her not to come back.”  As to whether she has had any counselling since then, Ms Wincott-Whyte said Dr Mattes “said it was all in her head” and that she asked Dr Powell whether she should see someone and Dr Powell had said “no.” Ms Wincott-Whyte said that Ms Pryc’s return had made her feel as though she should see someone, to assist with developing Ms Wincott-Whyte’s coping skills  in relation to Ms Pryc’s behaviour and “severe monitoring” of her.

33. As to whether Ms Wincott-Whyte had given any thought to anything outside the workplace that could have contributed to her condition, Ms Wincott-Whyte said that she did not know.

34. When directed to an email she wrote on 20 August 2010 regarding her concerns about Ms Szczepanski (referred to briefly in paragraph 47 above) (R2, T9, page 50), Ms Wincott-Whyte said that she had had concerns about the way Ms Szczepanski had been saying things about her out loud (for example, if she had to leave work suddenly “when the school would ring with sick kids”).  When asked whether she considered there was a connection between the increase in her workload, the increase in her symptoms and her “not getting on with Louise,” Ms Wincott-Whyte said that “Louise had left by the time she put her claim in.”

35. Ms Henderson then drew Ms Wincott-Whyte’s attention to the claimed date of injury for Ms Wincott-Whyte’s initial aggravation of neck, shoulders and upper arm injury being 25 August 2010 (being five days after the email referred to in paragraph 70 above was sent). When asked by Ms Henderson, Ms Wincott-Whyte said that she did not accept that her first claimed pain experience of a significant level in the neck and shoulders might be connected to increased stress and high pressure at work at that time.  Ms Wincott-Whyte did however say that some of Ms Szczepanski’s criticisms of her, for example in relation to her spelling and grammar, had been fair.

36. Ms Wincott-Whyte was then taken to her Injury Report in relation to her initial aggravation of neck, shoulders and upper arm injury (R2, T10, page 58), the “date of injury” field having been completed as “20 August 2010” and with a handwritten note alongside the “date of injury” field that states “26 August 2010.”  As to the discrepancy between these dates of injury and the 25 August 2010 date indicated on her workers’ compensation claim form (refer to paragraphs 4 and 7 above), Ms Wincott-Whyte said that she completed the Injury Report herself, she “always gets help with her injury reports,” she was “not sure” whether the handwritten note was her handwriting and she could not recall filling out the report. 

37. As to her description of events that led to the injury in the Injury Report form, namely (R2, T10, page 58):

    Recently due to the amount of staff being away my work load had increase [sic] form [sic] 2 baskets of VAP to 5 baskets.  Since last Friday the acting ASP [sic] 2 was sked [sic] why I was taking so long when I was still running on time eg ACIR due 11:00am and it was 10.30am.  Iam [sic] having to complete my work faster to compensate for the extra work being given by the acting APS 2.

    Ms Wincott-Whyte said that she had been working by herself, as “they had removed the casual who was helping her” and it was fair to say that she was being rushed to complete her work.

38. When asked by Ms Henderson as to whether it was fair to say that (given the matters at paragraphs 70 to 73 above) as at 25 August 2010 she was stressed at work, Ms Wincott-Whyte answered “no” and added that while the issues “had been going on a while” with Ms Szczepanski, this period “did not affect her any extra than normal.”  Ms Wincott-Whyte said that it was more the amount of work (that affected her at this time) as she “had never had five baskets before, it was only ever two or three [baskets].”

39. Ms Henderson then drew Ms Wincott-Whyte’s attention to her reconsideration request of the determination dated 22 April 2016, which included the following extract (R2, T157, page 576):

    …Monday the 2 May 2016 was my first full day since early last year.

    I sorted mail, one basket medicare [sic] mail

    190 RTS mail almost a basket.  The mail for other section was 162

    Complete (59) document preparation.

    I let Rebecca know that the RTS equaled [sic] nearly a whole basket my limit being two baskets.  This was not quoted on [sic] roster as it was agreed a transparent record be recorded.  I feel Rebecca was not happy with me for mentioning that the RTS was not included on the roster.  Rebecca asked me if I could not cope with the work.  I could cope with the work I just noticed the basket of RTS was not on roster.  The roster was altered and jobstream was crossed off the roster by Rebecca [sic] this type of behaviour has occurred numerous times in the past involving my GRTW plan…

1. In relation to the matters raised by Ms Wincott-Whyte in the extract at paragraph 75 above, Ms Wincott-Whyte said that in relation to the work required for the baskets, there are 200 to 250 envelopes per basket that must each be sliced and opened (Ms Wincott-Whyte demonstrated the wrist movements required to perform these tasks).  Ms Wincott-Whyte said that it was the opening and slicing of the envelopes that caused the exacerbation, not the baskets themselves.  Ms Wincott-Whyte said that when she says that there was an increase in baskets she is referring to “the amount of envelopes” in the baskets.

2. Ms Henderson directed Ms Wincott-Whyte to the following extract from Comcare’s determination dated 8 July 2011 accepting liability under section 14 of the SRC Act for Ms Wincott-Whyte’s aggravation of neck, shoulders and upper arm condition (R2, T18, page 91):

   Other Issues

   I note in your claim form that you are also claiming for RSI to your right wrist.  If you would like Comcare to consider this condition you will need to provide more medical evidence in support of your condition to your right wrist.

3. In response to the extract at paragraph 77 above, Ms Wincott-Whyte said that when she first started experiencing pain in her wrists, she had no idea that it would develop into CTS.  Ms Wincott-Whyte said that she did not provide more evidence regarding her right wrist at the time of Comcare’s determination (in relation to her aggravation of neck, shoulders and upper arm condition, referred to at paragraph 77 above).  Ms Wincott-Whyte said that the reason for not doing so was that her wrist pain was not significant nor was it troubling her at that time and if she wasn’t doing the work then the pain in her right wrist would go away.

4. Ms Henderson took Ms Wincott-Whyte to the following extract from a progress report by Ms Taryn Busby from PeopleSense dated 5 June 2014, which states (R2, T102, page 344):

   Ms Wincott-Whyte has been reporting very high levels of discomfort from the left shoulder, which radiates down her arm, and includes occasional finger numbness.  She also notes neck discomfort on the left side.

5. When asked by Ms Henderson, Ms Wincott-Whyte accepted that it was fair to say (from the extract at paragraph 79 above) that her problem with her left hand was considered as a problem relating to her left shoulder.  Ms Wincott-Whyte said that she did not see this connection as being a problem and that she had “let her OT know” (about the hand pain), and was told not to worry about it. 

6. Ms Wincott-Whyte said that she formed the view that she started suffering from bilateral CTS when she first saw Mr Tim Mitchell, Physiotherapist,[2] as “he felt the [wrist] issue was caused by the [slicing] tool.”

   [2] Ms Wincott-Whyte was first assessed by Mr Mitchell in June 2015 (R2, T130 at page 439) and attended a follow up assessment on 6 November 2015 (R2, T130 at page 442).

7. Ms Henderson then referred to May 2015 as being the date on which signs of Ms Wincott-Whyte’s CTS were first discovered by medical investigation (refer to EMG report by Dr Silbert dated 19 May 2015 at R1, T11.4, page 153) and that this evidence suggested Ms Wincott-Whyte’s CTS was on her left side only.  Ms Wincott-Whyte said that in relation to her wrist symptoms at that time, “her right side was fine” and that when she went back to Dr Silbert a year later, her symptoms were bilateral (refer to Dr Silbert’s report dated 20 September 2016 at R1, T11.4, page 157).

8. When asked by Ms Henderson as to whether it was fair to say that from around May 2015 to the middle of 2015 the symptoms in her hands and wrists increased, Ms Wincott-Whyte said “yes.”  When asked further by Ms Henderson as to whether it was fair to say that those hand and wrist symptoms were, at that time, related to a wrist condition or were a function of her shoulder complaint, Ms Wincott-Whyte said that she did not know and that she would only explain her symptoms to her OT and her OT would tell her not to worry. When asked by Ms Henderson, Ms Wincott-Whyte also said that the pain in her hands and wrists was different to the pain in her shoulders and was not referred from her shoulders.

9. In relation to the pain in her hands and wrists, Ms Wincott-Whyte said that at times (but not every time) she wakes in the morning following a day at work, and experiences numbness in certain fingers and in her wrists and swelling on the side of her wrists. Ms Wincott-Whyte also said that sometimes, but not every time, this numbness and swelling would coincide with the pain in her shoulders.

10. Ms Wincott-Whyte said that in around January 2016, she experienced “pain different to previous pains” and “all together the different areas of pain flared up.”  Ms Wincott-Whyte gave evidence that while she can’t remember if she went to the gym prior to her pain starting in 2016, she walked, jogged and swam a lot, did “not a lot of housework,” didn’t do her daughter’s hair and could not think of any other activities at that time that would have caused her pain.

11. Ms Henderson referred Ms Wincott-Whyte to the following extract from Dr Silbert’s report dated 4 April 2016 (R3, T14, at page 57):

    Ms Wincott-Whyte reported at the consultation of 22 March 2016 of an overall 70% recovery in the nature and extent of her symptoms and functional capabilities.  She denies any substantial improvement through to 2015…

12. When asked by Ms Henderson as to what the 70% recovery (referred to in paragraph 86 above) referred to, for example, to a recovery in Ms Wincott-Whyte’s shoulders or wrists or both, Ms Wincott-Whyte said that she thought it referred to her neck and shoulder pain.  Ms Wincott-Whyte said that the figure had been arrived at by her giving Dr Silbert a description of her symptoms and “he came up with the 70% figure.”

13. Ms Henderson then took Ms Wincott-Whyte to a further extract from Dr Silbert’s report dated 4 April 2016 (R3, T14, page 58), as follows:

    Ms Wincott-Whyte advised of enjoying periods of remaining pain free and periods extending in excess of one week.  She reports enjoying a resolution of all symptoms within one week following commencement of leave and then remaining entirely asymptomatic until following a return to work of any other significant physical activity.  Ms Wincott-Whyte denies any precipitation of symptoms whilst maintaining her current workplace restrictions and being limited to 2 baskets of mail, per day…

14. In response to the report extract set out at paragraph 88 above, Ms Wincott-Whyte said that during her time away from work, her symptoms settle and go away after a week and sometimes there are no problems.  Ms Wincott-Whyte said that she “could feel it” (her symptoms, while on leave) on the rare occasion that she cooked, last year or the year before.

15. As to whether Ms Wincott-Whyte discussed Dr Silbert’s reports with Dr Roberts, Ms Wincott-Whyte said, Dr Roberts had Dr Silbert’s report and that “her OT had to come and discuss with it (sic) (with Dr Roberts) in order to close the case.”  Ms Wincott-Whyte said that she had raised her concerns with Dr Silbert’s conclusion[3] with Dr Roberts as she felt that she still needed physiotherapy. She also raised some other matters arising from Dr Silbert’s reports with Dr Roberts.

    [3] In his report dated 4 April 2016, Dr Silbert reported that in his opinion, there is no indication to consider a requirement for any further medical and allied health management (R3, T14, page 65).

16. When asked by Ms Henderson as to whether she had provided information about her workplace to her medical practitioners and if so, whether any of those medical practitioners had made an independent assessment of her workplace, Ms Wincott-Whyte said that she had provided such information to her medical practitioners, however “she was not offered that (assessment).”

    Ms Kara Cepo, Occupational Therapist

    At the hearing, Ms Cepo provided oral evidence to the Tribunal by telephone.  Ms Cepo had earlier provided to the Tribunal the following reports, which are contained in the attachments to Ms Wincott-Whyte’s various written submissions:

    ·Report dated 10 November 2016 (A2, page 13 of attachments);

    ·Report dated 6 December 2016 (A2, page 14 of attachments);

    ·Report dated 27 September 2017 (A2, page 15 of attachments); and

    ·Report dated 18 September 2017 (A2, page 16 of attachments).

17. When asked by Ms Henderson as to how she had reached the conclusion that Ms Wincott-Whyte had bilateral CTS, Ms Cepo said that Ms Wincott-Whyte had first seen Mr Wilson,[4] who had conducted provocative testing and took a history of Ms Wincott-Whyte’s reported symptoms.  Ms Cepo said that Ms Wincott-Whyte’s ultrasound “didn’t seem to show anything,” however her later EMG showed an issue with the median nerve and that later result “fitted with their provocative testing.”

    [4] The reference to Mr Wilson is to Mr Stuart Wilson, Senior Occupational Therapist at Hand Works Occupational Therapy.  Mr Wilson saw Ms Wincott-Whyte at her initial appointment with Hand Works on 22 September 2016 (A2, pages 11 and 12 of attachments and also at R1, T6 at pages 13 and 14).

18. As to whether Ms Wincott-Whyte suffered any symptoms that were inconsistent with CTS, Ms Cepo said that the pain on the ulnar side of Ms Wincott-Whyte’s left wrist came and went and was “related to work tasks” and “didn’t bother her as much.”

19. Ms Henderson asked Ms Cepo whether there was anything inconsistent with Ms Wincott-Whyte’s workplace being the cause of her CTS.  In response, Ms Cepo noted that Ms Wincott-Whyte had reported no symptoms when on annual leave, that her symptoms returned when she had returned to work, her symptoms were worse when she performed tasks of more than 20 to 30 minutes in duration and that her mild (nerve) compression was able to be resolved with rest.  Ms Cepo said that therefore, Ms Wincott-Whyte’s symptoms resolved when her tasks ceased.  When asked, Ms Cepo said that if Ms Wincott-Whyte had had her EMG while on holiday from work, it potentially might not have shown CTS and the result can depend on timing.

20. Ms Cepo then gave the following two explanations of terms when asked by Ms Henderson:

    (a)“paraesthesia” – pins and needles or altered sensation in the fingers; and

    (b)“TFCC” being triangular fibrocartilage complex injury (“TFCC”) – ulnar side wrist pain.

21. Ms Henderson took Ms Cepo to the following extract from Mr Wilson’s report dated 22 September 2016 (A2, page 11 of attachments and R1, T6 page 13):

    Therapist Impression:

    Bilateral carpal tunnel – likely work related, with apparent mild moderate TFCC issues related to work.

22. Ms Cepo said, in relation to the extract from Mr Wilson’s report at paragraph 96 above, Ms Wincott-Whyte’s TFCC was not as much of an issue, but rather, her ECU[5] tendon or her FCU[6] tendon was more likely the cause of the pain.

    [5] Extensor carpi ulnaris tendon, which is on the back of the wrist, on the small finger side.

    [6] Flexor carpi ulnaris tendon, which is on the palmar side of the wrist, on the small finger side.  The FCU is one of the major tendons that flex the wrist.

23. Ms Cepo gave evidence that in her view, there was no significant inconsistency between Ms Wincott-Whyte’s pain scores and her provocative testing.

24. When asked to explain the “DRUJ”[7] test, Ms Cepo said that this test involved a bit more movement and could indicate a symptom of TFCC and of the stability of the DRUJ if there is an ECU tendon issue.  Ms Cepo added that TFCC is a repetitive and degenerative injury, whereas she was “looking for the chronic type” of injury in relation to Ms Wincott-Whyte. Ms Cepo also said that the general approach was to use a battery of assessments, that she was “not there to make a primary diagnosis” and her role was to “see what they can do for self-management.”

    [7] Distal radio-ulna joint, the distal (far) joint between the radius and ulna bones of the forearm.

25. When asked by Ms Henderson, Ms Cepo said that in relation to the investigations that were conducted, Ms Wincott-Whyte’s self-reports and self-information of her workplace tasks, along with the reports of Dr Roberts, the referring doctor, informed Ms Cepo’s understanding of the injury. 

26. As to Ms Wincott-Whyte’s hand splint (worn in 2016), Ms Cepo said that Ms Wincott-Whyte had had her right hand splinted at night, mainly just for paraesthesia and her left hand splinted all day, for wrist pain as well as for paraesthesia.

    Dr Debbie Roberts, General Practitioner

27. At the hearing, Dr Roberts provided oral evidence to the Tribunal by telephone.  Dr Roberts had earlier provided to the Tribunal the following referrals, reports and consultation notes:

    ·Referral dated 7 September 2016 (R1, T5, page 12);

    ·Report dated 15 December 2010 (R2, T12, page 63);

    ·Report dated 22 June 2011 (R2, T17, page 86); and

    ·Consultation notes (A7 and R1, T8, pages 21 to 29).

28. Dr Roberts gave evidence that she had known Ms Wincott-Whyte for more than 20 years.  Dr Roberts said that she had first met Ms Wincott-Whyte while she was working at a medical practice in Marangaroo, although she could not recall if their first meeting was due to a previous workers’ compensation claim made by Ms Wincott-Whyte.

29. As to the reasons for Dr Robert’s view that Ms Wincott-Whyte’s workplace caused her symptoms, Dr Roberts said that:

    (a)Ms Wincott-Whyte’s shoulder and neck symptoms were related to her workstation;

    (b)Ms Wincott-Whyte’s wrist symptoms were related to her letter opening (slicing) task; and

    (c)Ms Wincott-Whyte’s symptoms settled when she worked at reception (“where she didn’t perform those tasks”) and resumed when she returned to the mailroom.

30. In relation to her clinical notes dated 28 May 2014, which states in part, “time off hasn’t made much difference” (A7) and dated 2 July 2014, which states in part, “hasn’t been back to work, felt pain hadn’t settled” (A7), Ms Henderson asked Dr Roberts generally as to how long a person with a shoulder injury would need to be off work in order for their pain to settle.  Dr Roberts said it could take several years off work for a person’s shoulder injury to settle.

31. Ms Henderson referred Dr Roberts to a number of her consultations with Ms Wincott-Whyte in 2015 (refer to paragraph 66 above) and asked whether she could recall that being an “intense period.”  Dr Roberts said that she could not recall whether Ms Wincott-Whyte experienced a significant increase in symptoms during that time.  In relation to a number of those consultations in 2015 (R1, T8, pages 27 and 28), Dr Roberts said that:

    (a)on 4 May 2015, Ms Wincott-Whyte had told her that the mail room was short staffed and that she had to do extra work; and

    (b)on 21 May 2015, Ms Wincott-Whyte had presented with shooting pains on the left side of her face, however this was unrelated to her workers’ compensation claim, because nerves to your face don’t come from your neck, they come from your brain stem.

32. Ms Henderson took Dr Roberts to a number of consultation notes which suggested that Ms Wincott-Whyte’s symptoms were made worse by her gym exercise and housework (for example, 4 June 2015, at R1, T8, page 27 and 7 September 2011 (A7)).  When asked, Dr Roberts said that she had never considered whether Ms Wincott-Whyte’s gym activities significantly contributed to Ms Wincott-Whyte’s (neck, shoulders and upper arm) condition.

33. Ms Henderson referred Dr Roberts to her consultation note dated 5 August 2015 (R1, T8, page 26), which stated “stop the gym.”  Dr Roberts said that if she had been told and if experts agreed that Ms Wincott’s gym exercise was the cause of her shoulder and neck condition, then there is nothing in that record (that is, the record dated 5 August 2015), to contradict that.

34. Ms Henderson referred to a number of references in Dr Roberts’ consultations notes (in 2015 and 2016) to having discussions with Ms Wincott-Whyte about her anxiety (for example, on 9 January 2016, R1, T8 at page 25, “increasing axniety [sic] on Carols [sic] behalf” and asked Dr Roberts whether this (anxiety) had become “a theme.”  Dr Roberts said that Ms Wincott-Whyte has become distressed over the whole process and that this distress contributes to her muscle spasm.  Dr Roberts said that she recommended Ms Wincott-Whyte see a psychologist so that she could learn relaxation techniques (for when working in a hostile work environment) and pain management.  Dr Roberts said that she prescribed Valium to Ms Wincott-Whyte, however Ms Wincott-Whyte “never took it.”

35. When asked, Dr Roberts said that she could not recall having discussed Dr Silbert’s report dated 4 April 2016 with Ms Wincott-Whyte, his conclusions or recommendations, or whether or not Ms Wincott-Whyte expressed a negative view on that report.

36. When asked, Dr Roberts also said that it was reasonable to say that her consultations with Ms Wincott-Whyte were treatment focussed, with the aim of improving her symptoms.  Dr Roberts said that causation (of Ms Wincott-Whyte’s conditions) was relevant to the extent that it “offered clues to solve the problem.”  Dr Roberts said that “it was not her job to police the situation in terms of cause.”

    Dr Mark Floyd, Consultant Occupational Physician

37. At the hearing, Dr Floyd provided oral evidence to the Tribunal in person.  Dr Floyd had earlier provided to the Tribunal the following report, which is contained within the T-Documents:

    ·Report dated 25 November 2016 (R1, T14, pages 405 to 419 and R3, T19, pages 76 to 90).

38. When asked to explain CTS generally, Dr Floyd said that it was a compression of the median nerve at the wrist.  Dr Floyd said that the median nerve is at the thumbs and first two fingers and “supplies the senses” to a number of muscles.  Dr Floyd said that symptoms of CTS include pins and needles and that CTS “typically comes on gradually.”

39. When asked to name the critical diagnostic tests for CTS, Dr Floyd said that these tests are nerve conduction studies, which are not 100% reliable, the Phalens test, (which requires holding the wrists together for thirty seconds to one minute) and the Tinels test.  Dr Floyd said that “history is important” and that he was also very reliant on symptoms description and patient reporting.  Dr Floyd said that both diagnostic abnormality and symptoms are needed in order to make a diagnosis of CTS and if there are “no symptoms,” a person would struggle to make a firm diagnosis.

40. Dr Floyd said that people often report that their symptoms of CTS occur at night.  Dr Floyd said that in the foetal (sleep) position, a person’s wrists and elbows are flexed and they experience tingling when they wake.

41. When asked by Ms Henderson as to whether the matters addressed in paragraph 115 above indicate anything about the cause of CTS, Dr Floyd said that there was no good epidemiological evidence about whether CTS was caused by sleep. 

42. As to how one goes about making a diagnosis of CTS, Dr Floyd said that research builds on a hierarchy of studies, including: 1) clinical case study (at the lowest level); and 2) cross-sectional study, neither of which implies causation.  Dr Floyd added that 3) case control studies look at confounders such as gender, age and smoking for example, which also do not imply causation but indicate more of an association than clinical and cross-sectional studies.  Dr Floyd also said that 4) cohort studies follow people, who are given “opposite exposures” over a period of time “to see if they develop it.”  Dr Floyd said that if 1) to 4) were brought together, this would be a meta-analysis.

43. Dr Floyd said that what brings on a person’s symptoms is not necessarily what causes the condition, emphasising that “a bringing on of symptoms” does not necessarily mean something is caused, the cause of something being its underlying pathology.

44. Dr Floyd said that in relation to bilateral CTS, it is often said that it is a multifactorial condition of idiopathic cause and that the syndrome implies endogenous contributions.  Dr Floyd elaborated on “endogenous” as to mean that there is something else about that person that is contributing. 

1. Dr Floyd said that rarely do people use both hands equally.  Dr Floyd said that he would have otherwise expected the CTS to have developed first in the dominant (right) hand. 

2. When asked by Ms Henderson as to whether there were any other potential causation factors present in Ms Wincott-Whyte’s case, Dr Floyd said no, in terms of there being no evidence of swelling or major trauma, for example.

3. When asked by Ms Henderson as to whether there is any evidence that TFCC has any impact on causation of CTS, Dr Floyd said that there was no epidemiological evidence that TFCC relates to CTS and that TFCC was common in people with or without CTS.

4. As to whether it was significant (from the perspective of the causative factors of CTS) that:

   (a)Ms Wincott-Whyte is an ex-smoker, Dr Floyd said there is a greater (“doubling”)  risk; and

   (b)a woman is approaching menopausal age, Dr Floyd said yes, as menopausal age is the peak age for the onset of CTS.

5. When asked by Ms Henderson about occupational overuse syndrome (“OOS”), Dr Floyd said that, like repetitive strain injury and work related upper limb disorders, it is an umbrella term that captures different presentations.  Dr Floyd said that beneath that umbrella are 1) specific conditions and 2) non-specific conditions, the non-specific conditions being those with an absence of specific clinical findings.  As to why people present with pain under the OOS umbrella, Dr Floyd said that there are factors such as psychosocial factors and work dissatisfaction.

6. As to the significance of the April 2015[8] date regarding the onset of Ms Wincott-Whyte’s bilateral CTS, and whether Ms Wincott-Whyte had CTS prior to that date, Dr Floyd said that if CTS wasn’t there to a significant degree prior to that date, (noting that Ms Wincott-Whyte had been reviewed prior) and “no-one was making much of it.”

   [8] Refer to paragraph 10 above.

7. Noting that Dr Floyd’s opinion is that Ms Wincott-Whyte’s workplace would not have contributed to the development of her CTS to a significant degree (R1, T14, page 415, answer to question no. 7), Ms Henderson asked Dr Floyd whether there was any evidence that the type of work Ms Wincott-Whyte performed was causative of CTS.  Dr Floyd referred to the following extract from his report (R1, T14, page 416, answer to question no. 7):

   With reference to the type of occupational exposures associated with significantly increased risk of carpal tunnel syndrome in relation to the tasks performed by Ms Wincott-Whyte I would not consider that the combined exposure to high force and repetition is of the same magnitude as those occupations identified as being at significantly greater risk of developing carpal tunnel syndrome.

   [emphasis added]

8. In relation to the reference to repetition at paragraph 126 above, Dr Floyd said that the necessary period of time (for the repetition to be associated with significantly increased risk of CTS) is not conclusive, from one year to five years, but “more towards the longer time.”  Dr Floyd stress that it is combined exposure to high force and repetition that results in the increased risk, and is seen in those, for example, who assemble televisions and operate sewing machines.

9. As to Ms Wincott-Whyte’s CTS being mild, Dr Floyd said that on a scale from one to ten, and given that the predominance of her symptoms are at night, he would rate Ms Wincott-Whyte’s CTS a “two to three.”  Dr Floyd said that some people with CTS are severely incapacitated.

10. When asked by Ms Wincott-Whyte, Dr Floyd said that he was unaware of any specific studies conducted on CTS in mailroom operators and that he was reliant on studies conducted on those in other workplaces.  Dr Floyd also said that he did not expect someone performing the tasks required of Ms Wincott-Whyte in her role over that period to be at a significant risk.  Dr Floyd reiterated the distinction between symptoms and the condition itself and said that what people are doing when they experience symptoms is not necessarily the activity that is causative of the condition.

11. When asked by Ms Wincott-Whyte as to the utility of an MRI, Dr Floyd said that MRIs are useful, but that he goes back to his initial statement that a diagnosis is brought about by a combination of symptoms reporting, clinical testing, the Tinels and Phalens tests and nerve conduction studies.  Dr Floyd said that while an MRI “might have sured that up,” he was happy with his diagnosis.

12. During re-examination, Dr Floyd said that the natural progression of CTS is that symptoms worsen over time, which does not tell about causation.  Dr Floyd said that if a person stops performing a task and their symptoms decrease or go away entirely, this does not necessarily mean that it was those tasks causing the condition itself.

13. Ms Henderson asked Dr Floyd that if you accept the theoretical proposition that the onset of a person’s CTS occurred in their left side first and then their right side, whether this has any meaning for causation and any meaning for a person being right hand dominant. In answer to Ms Henderson’s question, Dr Floyd said that a right hand dominant is performing more tasks with their right hand, meaning that it is more typical to expect the onset of CTS to be in the dominant hand.  Dr Floyd answered further that if the onset of a person’s CTS is in their non-dominant hand, then one tends to think that something else is the cause.

    Dr Joel Silbert, Consultant Occupational Physician

14. At the hearing, Dr Silbert provided oral evidence to the Tribunal in person.  Dr Silbert had earlier provided to the Tribunal the following reports, which are contained within the T-Documents:

    ·Report dated 23 October 2012 (R3, T8, pages 30 to 40);

    ·Report dated 4 April 2016 (R3, T14, pages 54 to 67); and

    ·Supplementary report dated 28 April 2016 (R3, T15, pages 68 to 70).

15. When asked to explain “subacrominal bursitis,” Dr Silbert said that it was inflammation of the bursa, the bursa being a small bag of fluid that sits under the acromion.  Dr Silbert said that when that bag becomes thickened and inflamed, it occupies space under the shoulder and the tendons “get caught” or impinge.  Dr Silbert says this swelling is not visible from the exterior and sits deep within the shoulder joint.

16. Dr Silbert said that “bursitis is not necessarily always symptomatic and does not always cause an impingement.”  Dr Silbert added that it is not until the bursa becomes large enough (for the space it occupies) that it becomes symptomatic.

17. Dr Silbert distinguished between symptoms of bursitis and its cause, noting that there are internal and external causal factors.  Dr Silbert said that an external causal factor is anything that will reduce the space that causes the bursa to be limited.  Dr Silbert also said that there are three acromion types:

    ·flat;

    ·curves forward; and

    ·greater curve. 

    Dr Silbert said that those with an acromion with a greater curve have an increased disposition to developing subacromial bursitis because “the greater the curve, the lesser the space” (available in the bursa).  Dr Silbert also that those who adopt particular postures and those with an abnormality in the acromion also have an increased disposition to developing subacromial bursitis.

18. As to the intrinsic (or internal) factors causative of subacromial bursitis, Dr Silbert gave the examples of a person’s age (seeing a rise in those aged thirty onwards), trauma to that area and overuse.

19. As to the cause of Ms Wincott-Whyte’s subacromial bursitis, Dr Silbert noted that this question was not asked of him in his reports.  Dr Silbert said that in his view, Ms Wincott-Whyte was predisposed to subacrominal bursitis given her age, that she has a “type two” (curved) acromion, her stature, her periscapular muscular abnormalities and the activities she performs that involve the shoulder itself.

20. When asked whether those activities involving the shoulder that cause Ms Wincott-Whyte to experience symptoms in her shoulder are the same activities that has caused the subacromial bursitis condition itself, Dr Silbert said that those activities and causation are not necessarily correlated.  Dr Silbert went on to say that there is “a difference between pathology and symptoms,” namely:

    (a)subacrominal bursitis is a pathological condition, which may or may not “produce any pain”; and

    (b)symptoms are a person’s reporting of pain and discomfort of the underlying pathological condition.

21. When asked by Ms Henderson, Dr Silbert said that his opinion that (R3, T14, page 62):

    …Ms Wincott-Whyte has capacity for work.  She is considered fit to undertake an immediate return to her fully employed 34.5 hours of work per week and undertake all of the inherent requirements of the employed role as a Customer Service Officer (APS Level 1) and performing duties in the Mail Room.  There is no indication to consider a requirement for an ongoing medical restrictions, workplace modification, nor the use of aids or appliances…

    is based on his findings upon his examination of her on 22 March 2016 (R3, T14, page 60), that Ms Wincott-Whyte had reported an overall 70% recovery in the nature and extent of her symptoms and functional capabilities (R3, T14, page 57) and on her advice of enjoying periods of remaining pain free and periods extending in excess of one week (R3, T14, page 58).

22. When asked to explain the concept of “provocative testing” referred to in his report (R3, T14, page 60) Dr Silbert said that it was testing to provoke impingement.  Dr Silbert said that he had applied the Tinel’s and Phalen’s (provocative) tests in examining both of Ms Wincott-Whyte’s wrists, which showed no abnormalities.

23. Dr Silbert said that at the time of his consultation with Ms Wincott-Whyte, there was no evidence of any aggravation of her symptoms.

24. As to Ms Wincott-Whyte’s report to Dr Silbert that she can be pain free following one week’s leave from work (refer to R3, T14, page 58, extracted at paragraph 88 above), Dr Silbert said that he was aware of the requirements of Ms Wincott-Whyte’s work role, that certain physical activities could aggravate a person’s symptoms (although there was no evidence of any aggravation at that time) and that the bursa could swell up regardless of the activity, because it can be caused by a number of factors.  As to the timeframe for any inflammation, Dr Silbert said in the absence of an acute trauma, inflammation develops over a long period of time.

25. Returning generally to the distinction between symptoms and the underlying pathological condition in the context of paragraph 139 above, Dr Silbert said that the activity is the external force, applying the force onto the shoulder.  Dr Silbert said , however, that does not necessarily mean that that activity (of applying an external force to the shoulder) is the activity causing the bursitis, nor does that activity necessarily correlate to the underlying pathology.  Dr Silbert added that the pain experienced comes from impingement, not the swelling per se, that is, it is not the bursitis that causes the pain.

    Dr Eugene Mattes, Consultant Occupational Physician and Epidemiologist

26. At the hearing, Dr Mattes provided oral evidence to the Tribunal by telephone.  Dr Mattes had earlier provided to the Tribunal the following reports, which are contained within the T-Documents:

    ·Report dated 16 March 2017 (R2, T185, pages 670 to 682 and R3, T25, pages 98 to 110); and

    ·Supplementary report dated 29 May 2017 (R2, T196, pages 712 to 715 and R3, T27, pages 113 to 116).

27. Ms Wincott-Whyte asked Dr Mattes a number of questions to the effect of how could he hold the view that she does not have bursitis when the ultrasound revealed bursal thickening.  Dr Mattes responded as follows:

    (a)bursal thickness seen on an ultrasound is a non-specific finding frequently seen in asymptomatic patients (R3, T25, page 107);

    (b)bursitis is seen quite frequently and can exist with no shoulder pain;

    (c)in order for Ms Wincott-Whyte to meet the diagnostic criteria for subacromial bursitis, the bursal thickness must be in conjunction with a particular occupational history, a particular neurological system, a pattern of pain symptoms and also findings on physical examination (R3, T25, page 107 and R3, T27, page 115); 

    (d)as to occupational history, Dr Mattes does not think that Ms Wincott-Whyte’s new (mailroom) tasks and increased workload for that period significantly contributed to her symptoms;

    (e)as to findings on physical examination, Dr Mattes said that every single one of Ms Wincott-Whyte’s tests were normal;

    (f)how he came to form his view on Ms Wincott-Whyte’s symptoms is better explained by the biopsychosocial model.  As to biological factors, such as work or personal exposures, or findings upon clinical examination, Dr Mattes said that he “couldn’t identify anything.”  Dr Mattes explained that psychosocial factors (distress, depression, variation in pain thresholds, relationships with co-workers, career goals, home life, partner and family responsibilities, enjoyment in life) can all influence the experience of pain and in relation to Ms Wincott-Whyte, workplace issues were identified.  Dr Mattes noted that he referred to these factors in his supplementary report (R3, T27, page 116, answer to question 5).  For example, Dr Mattes referred to Ms Wincott-Whyte’s fear of redundancy and on his interpretation, he formed the impression that this fear was worrying Ms Wincott-Whyte; and

    (g)Dr Mattes said, that in the end, it is the combination of all of those (factors), they all “have to cohere” and Ms Wincott-Whyte’s examination “did not fit that at all.”

28. When asked by Ms Wincott-Whyte about the curve of the acromion being a risk factor for bursitis, Dr Mattes said that whilst its presence does not make a diagnosis of itself, it does increase the risk relative to those with a type 1/flat acromion.

29. When asked by Ms Henderson about the physical examination performed on Ms Wincott-Whyte, Dr Mattes referred to the examination detailed in his supplementary report (R1, T25, page 105), which included provocative testing and that the numerous tests performed gave normal results in both shoulders and in both wrists.  Dr Mattes also noted there was no evidence of painful arc or impingement.

    CONSIDERATION

30. The matters before the Tribunal involve three applications, namely:

    (a)Application 2017/3862 - denial of liability under section 19 of the SRC Act for aggravation of neck, shoulders and upper arm condition from 23 January 2017 to 24 March 2017.

    (b)Application 2017/4823 - no present or future entitlement to compensation under sections 16 and 19 of the SRC Act in relation to aggravation of neck, shoulders and upper arm condition.

    (c)Application 2017/1986 - denial of liability under section 14 of the SRC Act for bilateral carpal tunnel syndrome.

31. The three applications before the Tribunal relate to two claimed physical conditions, which are:

    (a)aggravation of neck, shoulders and upper arm condition; and

    (b)bilateral carpal tunnel syndrome.

32. For ease of reference to the available evidence, the consideration of the issues that follows is categorised by condition, rather than by application number, and the conclusions drawn in relation to each condition specifically address the issues for each application set out in paragraphs 29 to 34 above.

    Aggravation of neck, shoulders and upper arm condition

33. Ms Wincott-Whyte’s accepted condition in relation to Application 2017/3862 and Application 2017/4823 is her condition characterised by Comcare as aggravation of neck, shoulders and upper arm condition, sustained on 25 August 2010, for which Comcare accepted liability under section 14 of the SRC Act on 8 July 2011 (R2, T18 and refer to paragraph 8 above).

34. The first matter for the Tribunal’s consideration is not whether Ms Wincott-Whyte continues to suffer from a condition that strictly meets the description of “aggravation of neck, shoulders and upper arm condition.” Rather, the first matter that falls for consideration is whether, in the periods:

    (a)from 23 January 2017 to 24 March 2017 (Application 2017/3862); and

    (b)from 1 June 2017 to the present (Application 2017/4823) (refer to paragraph 19 above), respectively,

    Ms Wincott-Whyte suffered from (Application 2017/3862) and continues to suffer from (Application 2017/4823) an ailment that, during those periods, was contributed to (Application 2017/3862) and continues to be contributed to (Application 2017/4823), to a significant degree, by Ms Wincott-Whyte’s employment with the Department.  If so, then that ailment will meet the definition of a disease in section 5B of the SRC Act and in turn an injury under section 5A of the SRC Act (as required by section 14 of the SRC Act). Only if and when it is established that there remains a compensable injury under section 14 of the SRC Act will sections 16 and 19 of the SRC Act fall for consideration, to the extent they are in issue at the relevant times.

    Whether Ms Wincott-Whyte suffered from, at the relevant time and/or continues to suffer, from an ailment, and if so, the appropriate diagnosis of that ailment and the date of injury

35. The parties do not dispute that in relation to Application 2017/3862 and Application 2017/4823 at all relevant times Ms Wincott-Whyte suffered from or suffers from an “ailment” (as defined) for the purposes of subsection 5B(1) of the SRC Act. Even though the parties agree that they are settled on this point, the Tribunal considers that it must, of itself, be satisfied of the same on the available evidence.

36. Ms Wincott-Whyte is of the view that her ailment, at all relevant times, met or meets the description of “aggravation of neck sprain” or “aggravation to neck” and “aggravation of shoulder bursitis” or “aggravation of sprain of shoulder and upper arm (bilateral)” (A3, A4).  While Ms Wincott-Whyte does, in her various written submissions refer to aspects of the medical evidence that note her clinical history of bilateral subacrominal bursitis with impingement and right cervical inflammation, there is no reference to any evidence of a particular ailment (as defined) at the relevant times, being:

    (a)from 23 January 2017 to 24 March 2017 (Application 2017/3862); and

    (b)from 1 June 2017 to the present (Application 2017/4823).

37. Comcare refers to Ms Wincott-Whyte’s ailment, for the purpose of Application 2017/3862 and Application 2017/4823 as both “bilateral shoulder swelling” and bilateral “subacromial bursitis with impingement,” without any reference to Ms Wincott-Whyte’s neck area or to any particular aspect of the medical evidence in support of this being the ailment, as defined, at the relevant times.  While Comcare is of the view that Ms Wincott-Whyte’s shoulder condition arising from her 2011 claim “was resolved in 2016” (refer to subparagraph 16(b) of Comcare’s written opening submissions), it does not go so far as to submit that Ms Wincott-Whyte no longer suffers from an ailment in this regard.

38. The Tribunal is therefore met with the task of considering whether Ms Wincott-Whyte suffered from or continues to suffer from (as the case may be) an ailment, as defined in section 4 of the SRC Act, at the relevant times. Having not been offered any specific characterisation, or supporting medical evidence of Ms Wincott-Whyte’s actual ailment (as opposed to her symptoms or diagnosed condition, if any) at the relevant times, the Tribunal notes the following relevant evidence:

    (a)Dr Silbert noted that on 22 March 2016, Ms Wincott-Whyte reported some ongoing symptoms in her shoulders and neck.  Dr Silbert’s examination findings on 22 March 2016 were that Ms Wincott-Whyte’s left and right shoulders and cervical spine were normal and that there is no evidence of any ongoing pathology arising from her reported injury on 25 August 2010 (R3, T14, pages 60 and 65 and R3, T15, page 70).

    (b)The ultrasound report of right shoulder dated 17 January 2017 commented that there was “impingement-related pathology” and reported the following findings (R2, T178 and R3, T21, page 92):

    There is mild supraspinatus tendinopathy diffusely.  There is no sonographic evidence of supraspinatus tendon tearing.  The infraspinatus, subscapularis and long head of biceps tendons are normal.  There is mild subacromial/subdeltoid bursal thickening and bursal impingement was evidence.

    (c)Dr Mattes’ oral evidence at hearing at subparagraphs 146(a) and 146(b) above to the effect that a finding of bursal thickening on ultrasound is non-specific.

    (d)Dr Matthew Lawson-Smith (Orthopaedic Surgeon) reported on 18 January 2017 that he had “a long chat” with Ms Wincott-Whyte and thinks “she has a little bit of shoulder bursitis” (R2, T179 at page 649 and R3, T22).  It is unclear to the Tribunal whether Dr Lawson-Smith conducted an examination of Ms Wincott-Whyte on this occasion and if so, what this examination entailed. 

    (e)Dr Matthew Lawson-Smith (Orthopaedic Surgeon) reported on 24 February 2017 that Ms Wincott-Whyte has now had persistent bursitis of the right shoulder since he last saw her (R2, T179, page 651).

    (f)Dr Mattes in his report dated 29 May 2017, notes that in relation to Dr Lawson-Smith’s opinions at subparagraphs 157(d) and 157(e) above, “Mr Lawson-Smith does not provide any specific history, examination findings or other information to meet the diagnostic criteria of an impingement-related pathology such as subacromial bursitis.” (R2, T196, page 714).

    (g)Dr Mattes reported on 16 March 2017 that his assessment of Ms Wincott-Whyte on 2 March 2017 found no patho-anatomical explanation for her current neck and shoulder symptoms (R3, T25 at page 107 and see also R2, T185).  Dr Mattes reported that “whilst Ms Wincott-Whyte has supraspinatus tendinopathy and bursal thickness seen on ultrasound, these are non-specific findings frequently seen in asymptomatic patients. Given the findings on history and physical examination, she does not meet the diagnostic criteria for an impingement-related pathology such as subacromial bursitis.” Dr Mattes also reported that essentially, Ms Wincott-Whyte has a “normal cervical spine, upper limb musculoskeletal and neurological examination” (R3, T25, page 108).  Dr Mattes view was unchanged in his supplementary report dated 29 May 2017 (R3, T27 and R2, T196).

1. While the ultrasound report of Ms Wincott-Whyte’s right shoulder dated 17 January 2017 (R2, T178 and R3, T21), reports a number of comments and findings, the Tribunal finds that it does not have sufficient evidence before it to decide that:

   (a)the existence of these findings (namely, mild supraspinatus tendinopathy, mild subacromial/subdeltoid bursal thickening and bursal impingement) amounts to any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development, so as to fall within the definition of “ailment” and thus “disease”;

   (b)there exists any other findings or evidence at the relevant times in relation to Ms Wincott-Whyte’s shoulder, neck and upper arm areas amounting to any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development, so as to fall within the definition of “ailment” and thus “disease”; and 

   (c)even if there was evidence such that the Tribunal was able to satisfy itself that these findings did fall within the definition of an “ailment” on 17 January 2017, that this ailment continued to exist through to 24 March 2017 and from 1 June 2017 to the present.

   The Tribunal notes that the obligation to put this evidence before the Tribunal, as part of her claim asserting the right to compensation, is on Ms Wincott-Whyte.  While Ms Wincott-Whyte has given extensive evidence, both in her written submissions and orally at hearing, regarding the continuation of her subjective symptoms, the Tribunal is if the view that a person’s experience of their symptoms are distinct from and may or may not relate to that person’s ailment and their related diagnosed condition and “injury” as defined (if any, respectively).

2. In making the factual finding in paragraph 158 above, the Tribunal relies on paragraphs 17 and 19 of the Tribunal’s decision of Re Ross Catanzariti and Comcare [2004] AATA 1006 (referring to Comcare v Mooi (1996) 137 ALR 690 at 696) and on the Tribunal’s discussions of what constitutes an “ailment” as defined in section 4 of the SRC Act in Re Vo and Comcare [2005] AATA 773 at paragraphs 54 and 55 and in Re Proudfoot and Comcare (2008) 107 ALD 701 at paragraphs 31 and 32.

3. Given the Tribunal’s finding at paragraph 158 above that it does not have sufficient evidence before it that Ms Wincott-Whyte suffered from, or continues to suffer from an ailment, as defined (or an aggravation of an ailment), at the relevant times, the Tribunal has not addressed the remaining issues set out at subparagraph 31(b) and paragraph 32 above.  In the circumstances, it considers it is not required to do so.

   Section 14 determinations remain in force – Application 2017/3862 and 2017/4823

4. The Tribunal notes that the Department accepted liability under section 14 of the SRC Act for Ms Wincott-Whyte’s aggravation of neck, shoulders and upper arm condition on 8 July 2011 (refer to paragraph 8 above) based on the evidence before it at the time. The Department now relies on more recent evidence in support of its reviewable decisions denying liability under section 16 (Application 2017/4823) and section 19 (Application 2017/3862 and 2017/4823).

5. The Tribunal has made factual findings in this matter that effectively undercut the necessary findings of fact made by the Department granting liability for Ms Wincott-Whyte’s aggravation of neck, shoulders and upper arm condition under section 14 of the SRC Act. The Tribunal has done so in circumstances where it has been required to consider whether compensation should be payable to Ms Wincott-Whyte under sections 16 and 19 of the SRC Act and where the Department’s section 14 determination remains in force to the extent that it has not actually been reversed or been the subject of adverse review by the Tribunal. All of which, given the decision in Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 are within its powers.

6. In other words, it is acceptable for the Tribunal to find that there is insufficient evidence for it to be satisfied that Ms Wincott-Whyte suffers from an ailment, as defined, for the purposes of considering the Department’s liability under sections 16 and 19 of the SRC Act, without there ever having been any reconsideration of the Department’s determination dated 8 July 2011 accepting section 14 liability for Ms Wincott-Whyte’s aggravation of neck, shoulders and upper arm condition.

   Bilateral carpal tunnel syndrome

   Whether Ms Wincott-Whyte suffered from, at the relevant time and/or continues to suffer from an ailment, and if so, the appropriate diagnosis of that ailment

7. The Tribunal finds that Ms Wincott-Whyte’s diagnosed syndrome, bilateral CTS, is an ailment in accordance with the definition of “ailment” in section 4 of the SRC Act and for the purposes of subsection 5B(1) of the SRC Act. In making this finding, the Tribunal relies on the following:

   (a)the comprehensive discussion of the nature of carpel tunnel syndrome by Deputy President Boyle in paragraphs 59 to 68 of the decision of Re Cross and Comcare [2018] AATA 52 (“the Cross decision”). In that decision, the Tribunal’s understanding of the medical evidence on this point was that (at paragraph 67):

   The Tribunal’s understanding of the effect of the evidence given by the doctors, all of whom were very helpful, clear and extremely professional in their evidence, was that carpel tunnel syndrome, as the name suggests, is descriptive of a set of symptoms and that absent those symptoms it could not be said that someone is suffering from carpel tunnel syndrome. An individual may have a narrowing of or increased pressure in the carpel tunnel which may make the median nerve vulnerable to being compressed if the wrist is moved in a certain way, however, until the wrist is so moved causing the median nerve to be compressed resulting in the triggering of symptoms, the individual could not be said to have carpel tunnel syndrome. Similarly, after an occurrence of an event which triggered symptoms, if the individual were not to move his or her wrist in a way that would cause the median nerve to be compressed, that is be asymptomatic, the individual would not be considered to be suffering from carpel tunnel syndrome. The individual would have a risk of or susceptibility to a “triggering” of symptoms, but would not be considered to suffer from carpel tunnel syndrome.

   (b)Dr Mark Floyd, in diagnosing Ms Wincott-Whyte with bilateral CTS (refer to report dated 25 November 2016, R1, T14, page 413), noted that nerve conduction studies in September 2016 (the EMG report being at R1, T11.4, page 157) indicated left and right median neuropathy (entrapment of the median nerve) at the wrist (R1, T14, page 412); and

   (c)the Tribunal is satisfied that this entrapment of the median nerve, that is, the median nerve being compressed at a number of distinct sites along its course to the wrist meets the definition of an “ailment” in subsection 4(1) of the SRC Act.

   Whether Ms Wincott-Whyte’s bilateral carpal tunnel syndrome is a disease, that is, an ailment that was contributed to, to a significant degree, by her employment by the Department and if so, the date of injury

8. Having satisfied itself of the existence of an ailment, the next matter that falls for consideration is whether, as at and from 6 December 2016 (being the date that Comcare initially denied liability under section 14 of the Act), Ms Wincott-Whyte’s bilateral CTS was contributed to, to a significant degree, by her employment with the Department. The Tribunal refers to the thorough discussion of the meaning of “contributed to, to a significant degree” in paragraphs 128 to 135 of the Cross decision.

9. In her written submissions, Ms Wincott-Whyte contends that “medical and other relevant evidence available at the time of the original determination did support that I suffered form [sic] a work related compensable condition which resulted in from [sic] ‘bilateral mild carpal tunnel syndrome’” (A2). Ms Wincott-Whyte relies on the evidence of Dr Lawson-Smith, Dr Craig Smith, Ms Cepo and her general practitioners, Dr Roberts, Dr Patel and Dr Foroughi in this regard (A2).

10. Comcare is of the view that Ms Wincott-Whyte’s signs of bilateral CTS are very mild, and that they were not contributed to, to a significant degree, by her employment with the Department.  Comcare relies on the oral and written evidence of Drs’ Floyd and Mattes in submitting this to be the case.  Comcare also contends that Ms Wincott-Whyte is not, and has never been, incapacitated by her bilateral CTS, however whether Ms Wincott-Whyte’s bilateral CTS is compensable under section 19 of the SRC Act is not before this Tribunal.

11. The Tribunal notes the available evidence and parties’ further submissions regarding causation as follows:

    (a)Dr Lawson-Smith’s reports dated 6 January 2017 and 18 January 2017(the latter reports dated 24 February 2017 and 21 April 2017 referred to by Ms Wincott-Whyte relating only to her right shoulder issues) (all attached to A2), state that Ms Wincott-Whyte very much has work-related symptoms, with all accounts of Ms Wincott-Whyte’s symptoms and her work environment appearing to have been drawn from Ms Wincott-Whyte’s self-reporting. In his report of 6 January 2017, Dr Lawson-Smith notes his belief that an independent specialist said Ms Wincott-Whyte’s bilateral CTS was not a work-related condition. Dr Lawson-Smith has not provided an opinion on whether or not he agrees with that view;

    (b)Mr Craig Smith, Hand and Wrist Surgeon, in his reports dated 3 January 2017 and 22 March 2017 addressed Ms Wincott-Whyte’s symptoms and notes the findings of various studies, however he makes no comment on the cause of “the problems with both of her hands” (attachments to A2);

    (c)Ms Cepo gave evidence that Ms Wincott-Whyte’s bilateral CTS was caused by her employment and that that opinion was based on Ms Wincott-Whyte’s self-reports and self-information of her workplace tasks (refer to paragraph 94 above).

    (d)Dr Roberts’s opinion that Ms Wincott-Whyte’s wrist symptoms were related to her letter opening task (refer to paragraph 104 above) was relevant to the extent that it offered clues to solve the problem in the context of a focus on treatment.  Dr Roberts’ evidence was that it was not her job to police the situation in terms of cause (refer to paragraph 111 above).

    (e)Comcare contends that the evidence does not support a contention that Ms Wincott-Whyte’s work tasks “caused” her bilateral CTS because (R4, paragraphs 32 and 33):

    (i)there is no evidence that those work tasks were significantly different to any other normal office environment;

    (ii)at the relevant time, Ms Wincott-Whyte’s duties were not of a type associated with causation of bilateral CTS in mainstream medical literature or in the opinion of the medical experts retained by Comcare;

    (iii)any increased workload experienced by Ms Wincott-Whyte was not of sufficient duration to be causative of CTS;

    (iv)Ms Wincott-Whyte’s age and gender predispose her to having some mild CTS in the wrists;

    (v)the mere fact of Ms Wincott-Whyte’s employment with the Department is not sufficient to constitute a contribution from employment within the meaning of the legislation;

    (vi)Ms Wincott-Whyte’s symptoms are better explained by psychosocial factors rather than biological factors, relying on the report of Dr Mattes dated 2 March 2017 (the Tribunal finds that this is meant to refer to the report of 16 March 2017, not 2 March 2017) (R3, T25); and

    (vii)any increase in symptoms experienced by Ms Wincott-Whyte at work was temporal and not causative.  That is, Ms Wincott-Whyte’s symptoms would have increased regardless of whether she was at work, or otherwise engaged in everyday life activities (which, according to Comcare, relying on Comcare and Reardon (2015) 148 ALD 356; [2015] FCA 1166 at [39]), does not advance her claim.

12. Comcare noted to the Tribunal the distinction drawn by Deputy President Boyle in the Cross decision (at paragraph 88) between a person’s experience of symptoms of a condition and the underlying pathology of a condition, as follows:

    …it would make little sense to treat the symptoms as being the ailment for the purposes of s 5B(1) of the Act which must be “contributed to, to a significant degree, by the employee’s employment.”  The symptoms come and go depending on the activity being undertaken by the employee.  The more logical issue to consider in this regard is whether an underlying pathology which causes or predisposes the employee to the onset or triggering of symptoms was contributed to by the required degree by the employee’s employment.

13. Ms Wincott-Whyte relies on the correlation between her reported symptoms of bilateral CTS and her workplace tasks to conclude that the workplace is the cause of that condition.  Noting the distinction between symptoms and underlying pathology drawn at paragraph 169 above and by Dr Floyd at hearing (refer to paragraph 118 above), and that a person’s experience of those symptoms may or may not relate to a diagnosed condition, the Tribunal finds that Ms Wincott-Whyte’s approach to causation is fallacious.

14. The Tribunal finds that, based on the evidence and on the jurisprudence set out in the Cross decision:

    (a)No evidence has been presented, being in the form of an opinion expressed by a medical professional, contemporaneous medical evidence or elsewhere for the Tribunal to satisfy itself that Ms Wincott-Whyte’s bilateral CTS, is contributed to, to a significant degree, by her employment with the Department. 

    (b)While the Tribunal accepts Dr Floyd’s diagnosis of Ms Wincott-Whyte’s bilateral CTS and her subjective evidence regarding her experience of symptoms in her hands and wrists, what must be affected to a significant degree is an underlying pathology which causes the symptoms. 

    (c)In the present matter, the underlying pathology is the left and right median neuropathy.  No evidence has been presented that Ms Wincott-Whyte’s workplace contributed to her neuropathy to any extent, let alone significantly. 

    (d)The Tribunal notes that no evidence was presented to establish that any of Ms Wincott-Whyte’s workplace tasks were of such a nature (in terms of their combined force and repetition, referring to Dr Floyd’s evidence at paragraphs 126 and 127 above) that they could cause CTS. 

    (e)However, given the matters addressed at sub-paragraphs 171(a) and 171(b), the Tribunal notes the necessary question of whether those workplace tasks could cause a change in the underlying pathology of CTS was not put to the medical witnesses by either party.  Again, the Tribunal notes that the obligation to put this evidence before the Tribunal, as part of her claim asserting the right to compensation, is on Ms Wincott-Whyte.

    (f)Comcare also sought to advance evidence through Dr Floyd regarding other potential causes of Ms Wincott-Whyte’s bilateral CTS (namely age, gender and smoking history, refer to paragraph 123 above).  While there may or may not be other potential contributors, the Tribunal for present purposes is concerned only with whether Ms Wincott-Whyte’s workplace was a significant contributor.

    (g)Hence, Ms Wincott-Whyte’s bilateral CTS is not a disease within the meaning of section 5B of the SRC Act.

    (h)Rather, the Tribunal is of the view that at best, the extent to which one can say that Ms Wincott-Whyte’s employment with the Department has played a role in the development of her bilateral CTS is limited to an appreciation that Ms Wincott-Whyte’s workplace is the environment in which the syndrome was played out.

15. As the Tribunal has found that the necessary causal relationship between Ms Wincott-Whyte’s workplace and her bilateral CTS does not exist, it has not concerned itself with the date of injury for this syndrome.

    CONCLUSION

16. Broadly, Ms Wincott-Whyte seeks orders which would have the effect of:

    (a)entitling her to compensation under sections 16 and 19 of the SRC Act in relation to her aggravation of neck, shoulders and upper arm condition; and

    (b)granting liability under section 14 of the SRC Act in relation to her bilateral CTS.

17. The Tribunal finds that in relation to her aggravation of neck, shoulders and upper arm condition, there is insufficient evidence to conclude that:

    (a)Ms Wincott-Whyte suffers from an ailment, as defined in section 4 of the SRC Act;

    (b)Ms Wincott-Whyte continues to suffer from an injury, as defined in subsection 5A(1)(a) of the SRC Act.

18. As such, the Tribunal has not considered whether, in relation to the aggravation of Ms Wincott-Whyte’s aggravation of neck, shoulders and upper arm condition:

    (a)there was any entitlement to compensation for incapacity  from 23 January 2017 to 24 March 2017 (Application 2017/3862); and

    (b)there was any entitlement to compensation for incapacity or for medical expenses  from 1 June 2017 onwards (Application 2017/4823).

19. In relation to her bilateral CTS, there is insufficient evidence to conclude that it was contributed to, to a significant degree, by Ms Wincott-Whyte’s employment with the Department (Application 2017/1986).

    DECISION

20. The decisions under review dated:

    (a)8 June 2017 (Application 2017/3862);

    (b)28 July 2017 (Application 2017/4823); and

    (c)7 February 2017 (Application 2017/1986)

    are affirmed.

I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.......[sgd].................................................................

Associate

Dated: 7 June 2018

Dates of hearing:	6 and 7 February 2018
Applicant:	In person: self-represented
Counsel for the Respondent:	Ms Jessica Henderson
Representative for the Respondent:	Ms Carmen Basilicata
Solicitors for the Respondent:	Sparke Helmore Lawyers