Wood and Comcare (Compensation) - [2019] AATA 981

Wood and Comcare (Compensation) [2019] AATA 981 (23 May 2019)
Division:GENERAL DIVISION
File Number(s): 2018/0013
Re:Alison Wood
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Mark Hyman, Member
Date:23 May 2019
Place:Canberra

The decision under review is set aside, and in substitution it is decided that Comcare remains liable to pay Ms Wood compensation under section 16 of the SRC Act from 11 October 2017 to the date of this decision.
........................................................................
Mark Hyman, Member
Catchwords
WORKERS COMPENSATION – no present entitlement – accepted conditions of tenosynovitis and chronic pain syndrome – new medical evidence – osteoarthritis of the thumbs – carpal tunnel syndrome – aggravation – where no change to underlying pathology - whether symptoms contributed to by employment to the requisite degree – whether medical treatment obtained in relation to the compensable conditions – whether reasonably obtained - decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975, s 37
Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19
Cases
Abrahams v Comcare [2006] FCA 1829
Anderson and Australian Postal Corporation [2016] AATA 228
Bailey v Broadsword Marine Contractors [2017] FCAFC 219
Comcare v Reardon [2015] FCA 1166
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie [1981] FCA 88
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Fletcher and Comcare [2015] AATA 430
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Mellor and Australian Postal Corporation [2010] AATA 502
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Prain v Comcare [2017] FCAFC 143
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Rutledge and Comcare [2011] AATA 865
Telstra Corporation v Hannaford [2006] FCAFC 87
Tippett and Australian Postal Corporation [1998] FCA 335
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Secondary Materials
Jane F Thomsen, Fred Garr and Isam Atroshi, Carpal tunnel syndrome and the use of computer mouse and keyboard: a systematic review BMC Musculoskeletal Disorders 2008;9:134
Isam Atroshi et al, Carpal tunnel syndrome and keyboard use at work: a population-based study Arthritis and Rheumatism 2007;56;3620
Z Mediouni et al, Carpal tunnel syndrome and computer exposure at work in two large complementary cohorts BMJ Open 2015;5:e008156
REASONS FOR DECISION
Mark Hyman, Member
22 May 2019
This decision is about whether the applicant, Ms Alison Wood, can continue to receive compensation for her accepted conditions under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Ms Wood lodged a claim for workers’ compensation with Comcare, the respondent, on 10 September 2002, in respect of “overuse tendonitis”. Comcare accepted liability for “tenosynovitis hand and wrist (right)” on 26 September 2002. Ms Wood worked at reduced hours, was assessed for and underwent rehabilitation and completed a graduated return to work in January 2003. She has remained at work at CSIRO since that time. On 25 May 2005 Comcare amended the accepted condition to “tenosynovitis hand and wrist (bilateral)”. On 4 July 2011 Comcare extended liability to include “chronic pain syndrome”. On 11 October 2017 Comcare decided that Ms Wood had no present entitlement to compensation under section 16 of the SRC Act. Ms Wood sought reconsideration of that decision on 6 November 2017, and Comcare affirmed the decision in a reconsideration determination on 28 November 2017. On 30 December 2017 Ms Wood applied to this tribunal for review of Comcare’s reconsideration determination.
The tribunal held a hearing on 14 and 15 March 2019. Ms Wood represented herself with the support and assistance of her brother, Mr Mark Wood. Comcare was represented by Mr Michael Snell of counsel, briefed by Ms Kate Watson of Lehmann Snell Lawyers. Ms Wood gave evidence on her own behalf, but called no witnesses in support. Two expert witnesses appeared for Comcare: Professor Peter Youssef and Dr Tony Kostos, both rheumatologists. Professor Youssef and Dr Kostos gave evidence by telephone.
The tribunal had before it the documents (the “T-documents”) provided by Comcare under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and a number of documents tendered at the hearing:
·the statement of facts issues and contentions by Ms Wood (included because it included some factual material that might not otherwise be available to the tribunal, as there is no separate witness statement by Ms Wood) (Exhibit A1);
·some medical records tendered by Ms Wood, comprising a radiologist’s report on an X-ray of both hands and wrists, dated 1 June 2012, a similar report of an X-ray of the left wrist and thumb base, dated 17 February 2017, progress notes recorded for Ms Wood by her general practitioner Dr Nina Johnson and dated 19 July 2006, and accompanying consumer medicine information provided in regard to a non-steroidal anti-inflammatory medicine, Orudis SR, a form of ketoprofen (Exhibit A2);
·a tax invoice from a consultant occupational and environmental physician, Dr Warren Harrex, dated 13 September 2017, for a consultation and preparation of a report (Exhibit A3);
·a letter from Dr Johnson to Comcare, dated 22 May 2017 (Exhibit A4); and
·a report by Professor Youssef, dated 14 May 2018 together with a briefing letter dated 7 May 2018 (Exhibit R1).
Following the hearing it became apparent that Professor Youssef had been sent material, mostly comprising material obtained under summons, that was not available to the tribunal. He made a detailed reference to some of this material in his report. Comcare agreed to provide the tribunal with the material to which Professor Youssef made reference, and did so, with a copy to Ms Wood. The parties were invited to make submissions regarding the relevance of the material if they wished, but neither Ms Wood nor Comcare did so. The material is referred to below when relevant.
ISSUES
The decision under review is that as of 11 October 2017, Comcare ceased to be liable for medical expenses in respect of Ms Wood’s accepted conditions of “tenosynovitis hand and wrist (bilateral)” and “chronic pain syndrome”. Comcare took that decision on the basis of medical evidence that Ms Wood no longer suffered, and may never have suffered, from those conditions. It is Comcare’s case theory that the conditions were mistakenly diagnosed from the outset, and that the condition or conditions that Ms Wood suffered from never demonstrated the necessary nexus with employment to satisfy the SRC Act.
It was firmly established in Telstra Corporation v Hannaford [2006] FCAFC 87 (Hannaford) that it is open to the tribunal in such circumstances to make findings regarding the basis for the original acceptance of liability in the course of deciding whether the nexus between the applicant’s medical condition and employment is established. Where a decision that liability should never have been accepted is taken, that decision operates only from the date of the initial determination leading to the decision under review (in this instance 11 October 2017) and leaves the original acceptance of liability under section 14 in place (Conti J at [57-59], with which Heerey and Dowsett JJ agreed).
Within those limitations, then, the issues before the tribunal in this matter are:
·the diagnosis of the condition or conditions for which Ms Wood received compensation;
·whether Ms Wood continues to suffer from the accepted condition or conditions, as at 11 October 2017 and up to the present;
·whether those conditions continue to satisfy the required nexus with employment, that is
owhether they continue to meet the test that they arose out of or in the course of Ms Wood’s employment, or
owhether they continue to meet the test that they were contributed to, in a material degree, by Ms Wood’s employment;
·whether any medical treatment obtained by Ms Wood between 11 October 2017 and the present was obtained in relation to her accepted condition or conditions;
·whether that treatment was reasonable for her to obtain in the circumstances; and
·whether Ms Wood remains entitled to compensation under the SRC Act.
THE LEGISLATIVE CONTEXT
The SRC Act provides for compensation to be paid in respect of injuries occasioned by employment. The version of the Act that applies to Ms Wood’s original injury is that in force at the time of the injury. The chronic pain syndrome, however, was accepted at a later date as a secondary condition to the initial injury. The SRC Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No54/2007), which commenced on 13 April 2007, to change the test to determine the required nexus. Because the date of onset between the original and secondary conditions varies, both the unamended SRC Act and the later amended Act need to be kept in view. This is important because in one particular aspect the relevant provisions have changed: the earlier version sets a test for the nexus between employment and the disease suffered by a person which is different from that in the current version of the Act.
Subsection 4(1) of the Act as it stood at the time of Ms Wood’s injury, defines an injury, for the purposes of the Act, as follows:
"injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
Subsection 4(1) also defines a disease, as follows::
"disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
Once amended, the SRC Act included in section 5A text that is identical for present purposes to that produced above for the definition of “injury” (the changes made to the text above relate to the “reasonable disciplinary action” in the last part of the text, which has no application in the present matter). Section 5B then relevantly defines “disease” in terms that differ from the extract above, as follows:
(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.
In other respects, so far as is relevant for present purposes, the SRC Act remained the same before and after amendment.
Subsection 4(1) further defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 14 of the SRC Act is the gateway provision for compensation within the Act’s legislative framework. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Later parts of the Act then provide for compensation to be paid in particular circumstances where specified criteria are met; in particular, section 16 provides for compensation for medical expenses and section 19 provides for payment where an injury makes an employee incapacitated for work.
Subsection 16(1) of the SRC Act provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Subsection 4(1) contains a definition of “medical treatment”. It includes (relevantly) medical or surgical treatment by or under the supervision of, a legally qualified medical practitioner (paragraph (a)); or therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b)). Subsection 4(1) also defines “therapeutic treatment” to include treatment given for the purpose of alleviating an injury.
THE EVIDENCE
Evidence in this matter comes from the documentary record (including the material obtained under summons and considered by Professor Youssef), Ms Wood’s oral evidence, and the reports and oral evidence of the two doctors called by Comcare.
Ms Wood’s evidence
Ms Wood took up employment with CSIRO in 1984, at first as a receptionist. Her duties evolved over the initial period of her employment, embracing typing, managing papers and paper records, responding to telephone calls, and dealing with visitors. Later, travel arrangements and aspects of property management and human resource management were added. These duties required a mix of activities, some but not all of which were computer-focused. Gradually, however, the proportion of keyboarding increased. In time, Ms Wood’s duties shifted mainly to records management, with virtually all of the work done through an electronic database system, which meant that the work was almost entirely done on a computer system.
This shift in duties took place at the time, around late 2001, that Ms Wood said she became aware of symptoms, comprising generalised pain in the hands, wrists and arms, with a diffuse pain also in the right arm and affecting the outer aspect of the forearm. Over time this extended to both arms, and to the back of the hand and the underpart of the forearm. She developed epicondylitis in both elbows. She also developed what she described as neuropathic (or “neurological”) pain in the right hand between the little finger and the ring finger, with a feeling of burning in the interdigital space.
Ms Wood said, under cross-examination, that she developed other musculoskeletal issues, including right shoulder and discogenic neck pain, both now resolved; spinal pain in the lower back, diagnosed as osteoarthritic and treated with a cortisone shot, a problem she attributed to playing touch football; bursitis of the left hip; knee issues as a child, long since resolved; and osteoarthritis in the thumbs. With regard to the last, Ms Wood said that she had had osteoarthritis diagnosed by Dr Sindy Vrancic, an orthopaedic surgeon, who undertook surgery on her left thumb in 2017 (a trapeziectomy) and 2018 (a joint fusion). Dr Vrancic is expecting to undertake further surgery on the right thumb, but Ms Wood reports her as saying that she wishes to wait until the left thumb is stable.
Ms Wood acknowledged a family history of musculoskeletal or inflammatory problems: her father and brother have Paget’s disease (a bone condition); her niece has rheumatoid arthritis; both parents have degenerative arthritis.
Ms Wood is currently managing her condition conservatively, without any professional treatment. She takes ketoprofen, a non-steroidal anti-inflammatory drug, prescribed for her from a few years ago. She also takes Panadol Osteo. She used to go to physiotherapy, which focused on stretching and strength work, especially of the upper body, in an intensive program called “active range therapy”. Since the decision under review she no longer does physiotherapy, but she finds that if she is sensible, and does the right things, she can manage.
Earlier in her life, Ms Wood was active in sports, playing softball, soccer, rugby league and touch football; most of these she stopped 20 years ago, but she kept playing softball until 5-6 years ago, when the weight of the gloves and the jarring from the ball striking the bat became too painful. She also did cooking, gardening, kayaking and playing guitar but has since given up the guitar and the kayaking and now does little gardening.
The medical evidence
The documentary record
Ms Wood lodged a claim for compensation on 10 September 2002 (T4), also giving that date as when she first received medical treatment. The claim form gives the diagnosis as “overuse tendonitis” and that is backed up in a note from Dr Johnson dated 10 September 2002 giving the condition Ms Wood had developed as “overuse tendonitis of her right wrist which is caused by excessive computer mouse work” (T5). On her claim form, Ms Wood described the injury as follows: “I noticed weakness in my wrists up to a year ago but have suffered from pain in the wrists over the past couple of months”. She described the effect as follows: “Need 2 hands to pump petrol & lift saucepans etc. Get very tired hand when handwriting & feel pain. Pain increases during day when typing. Gardening and household chores difficult” [sic]. The place where the injury occurred is given as “desktop using PC, especially mouse”, and the events contributing are described as “gradual increase in keyboard work. Trim databases require a lot of mouse work.”
Ms Wood’s employer, CSIRO, instituted measures to assess her wrist condition and to allow her to recover from the intense symptoms at onset, and developed a considered program for a graduated return to work (T8, T9, T11, T13, T14). A psychological assessment by Dr Jeannie Higgins, a clinical psychologist (T10, dated 15 August 2003) identified a chronic pain disorder, secondary symptoms of depression, and panic disorder with agoraphobia (the last a pre-existing condition).
In a letter providing a progress report to Comcare (T15 - the letter appears to be undated, but the T-document index gives the date of the letter as 24 December 2004), Dr Johnson notes that Ms Wood has done all that was asked of her but continues to have pain aggravated by her employment activities such as keyboarding, mouse use or writing. Her pain extended to both hands and arms. Dr Johnson described the pain as “tenosynovitis pain”. On 25 May 2005 Comcare extended liability to “tenosynovitis hand and wrist (bilateral)” (T16).
Dr Johnson’s clinical notes document a diagnosis of chronic regional pain syndrome for the first time on 19 July 2006.
Comcare wrote to Dr Johnson on 15 September 2009 seeking a report of Ms Wood’s condition at that time (T18.1). On 4 November 2009 Dr Johnson wrote back to Comcare (T18), stating that Ms Wood suffered from a chronic regional pain syndrome in addition to her tenosynovitis; that the condition had developed from her initial tenosynovitis and should be regarded as having the same cause; that her pain was exacerbated by work; that she had not been investigated for arthritis or degeneration in the hands; that she develops elbow pain from time to time; and that her prognosis was poor. On 4 July 2011 Comcare accepted a secondary condition of chronic pain syndrome (T21) with date of injury 4 November 2009. Comcare wrote again to Dr Johnson on 17 June 2011 (T22.1), and Dr Johnson sent back a letter dated 6 July 2011. The letter (T22) is in similar terms to Dr Johnson’s letter dated 4 November 2009 but it notes that Ms Wood had a one month rest from work in 2009 for an unrelated medical condition, and this allowed the upper limb pain to settle almost completely. On resuming work, the previous chronic pain returned within two months.

On 22 December 2016 Dr Johnson referred Ms Wood (T23) to Dr Vrancic for “opinion and management re mechanical pain from arthritic L 1^st CMCJ” [scilicet: left first carpometacarpal joint]. This referral was evidently accompanied by relevant imagery, and two reports of hand and wrist X-rays at Exhibit A2 show that in 2012 Ms Wood displayed early left first carpometacarpal joint osteoarthritis, and the February 2017 report referred to degenerative changes in the left wrist with bony hypertrophy and sclerosis of articular surfaces. Dr Vrancic’s first report, dated 6 March 2017 (in the papers sent to Professor Youssef), makes a diagnosis of “end-stage osteoarthritis of the CMC joint of her left thumb”. Dr Vrancic’s report post-surgery (21 June 2017, also in the material sent to Professor Youssef) expresses satisfaction with the outcome.
A note from a CSIRO injury management adviser to Comcare (T24), dated 10 April 2017 advises that Ms Wood had undergone surgery on her left hand on 9 March 2017; that this was unrelated to her compensable condition; but that the increased stress on her right hand while the left hand was recovering had exacerbated her right hand condition; and the exacerbation should be handled through the Comcare claim.
Dr Vrancic saw Ms Wood again later in the year, and she provided a report to Dr Johnson dated 16 October 2017 (included in material provided to Professor Youssef). Dr Vrancic described Ms Wood’s reported symptoms and speculated on the possibility of a mild variant of carpal tunnel syndrome. She referred Ms Wood for an X-ray and ultrasound of the left hand and wrist. The report of the X-ray shows degenerative change at the base of the first metacarpal with subchondral bone cyst formation, and degenerative change at the joint space between the trapezoid and the scaphoid; the ultrasound showed synovial thickening and hyperaemia near the first carpometacarpal joint; the median nerve was unremarkable, with no evidence of compression.
Following the report of Dr Tony Kostos dated 19 June 2017 (see below), Comcare wrote to Ms Wood noting that the report suggested that she may no longer be suffering from her compensable condition, and inviting a response or additional medical evidence (T27). Ms Wood attempted to seek reconsideration (T28, T28.1, both dated 13 September 2017) but Comcare noted that there was as yet no determination for which reconsideration could be sought (T29). Ms Wood resubmitted the letter of 13 September 2017 and an independent medical report which she had commissioned from Dr Warren Harrex, a consultant occupational and environmental physician, dated 12 September 2017 (T33.4), as additional medical evidence for Comcare to take into account. On 11 October 2017 Comcare made the determination of no present liability (T31).
Ms Wood now made a request for reconsideration (T33, dated 8 November 2017), attaching a supporting statement of her own (T33.2), a supporting letter from Dr Johnson (T33.3) dated 29 June 2017, and the report of Dr Harrex. The last found that the diagnosis of tenosynovitis in 2002 “appears to be an appropriate description of her symptoms at the time”, and states that “there is evidence that continued and repetitive use of computer keyboards and mice can result in neuropathic changes and I consider her continued description of burning pain over the years is consistent with this”. He noted that mild to moderate chronic pain symptoms often present no objective signs on clinical examination. Dr Harrex concluded that the problems arising from return to work after surgery did not reflect a new ailment but rather a reflection of increased use of her right hand; her residual symptoms were in his view consistent with her pre-existing chronic pain syndrome.
Exhibit A4 is a report from Dr Johnson to Comcare, dated 22 May 2017, that should have made its way into the T-documents but evidently did not. The letter reports on Ms Wood’s recovery from surgery in the context of her return to pre-surgery hours and levels of functionality. The letter notes the increased pain levels in the right hand following Ms Wood’s return to work and increased use of the right hand; describes aggravation of her chronic pain syndrome, again because of increased use of the right hand; states that this aggravation is due to employment, because it results from keyboarding; and urges a reduction in Ms Wood’s hours of work, on a temporary basis.
On 20 April 2017 Ms Wood evidently lodged a claim for compensation for aggravation of chronic pain syndrome of the right hand and wrist. This application is not itself in evidence, but is referred to in the reconsideration determination relating to the claim. Comcare apparently took a decision on 22 June 2017 denying the claim, relying on the report of Dr Kostos (T26). Again, the decision is not in evidence but is referred to in the reconsideration determination. That determination is included in the material sent to Professor Youssef; it affirmed the earlier decision on the basis of Dr Kostos’s report
Professor Youssef
Professor Youssef provided a report dated 14 May 2018, based on an examination carried out on that day. Professor Youssef’s conclusion, drawing on his examination and a significant body of documentary records, is that Ms Wood suffered from two basic conditions: first, a generalised degenerative osteoarthritic condition, manifest in particular in her thumbs but also at various times affecting her spine; and second, probable carpal tunnel syndrome. Professor Youssef concluded that Ms Wood had developed degenerative disease of both thumb carpometacarpal joints “as early as 2002” and noted that “over the years she has had symptoms of bilateral carpal tunnel syndrome and progressive degenerative disease of the bases of the thumbs, particularly the left as well as the left thumb metacarpophalangeal joint”. In Professor Youssef’s view, these two conditions could explain all of Ms Wood’s symptoms, and so there was no need to arrive at a diagnosis of chronic pain syndrome, which is a diagnosis where pain has no explanation deriving from underlying pathology. Professor Youssef noted that Ms Wood displayed no symptoms at the time of examination related to epicondylitis in the elbows but that this condition was apparent from the medical history; and that some of the symptoms Ms Wood reported historically might have originated from left cervical radiculopathy, which was reported at one point.
Professor Youssef also noted that Dr Johnson reported (T22) that in 2009, after a month of rest for an unrelated medical condition, the upper limb pain had almost entirely settled; in his view that course was not consistent with a chronic pain syndrome.
Professor Youssef said that both the degenerative disease and the carpal tunnel syndrome are constitutional disorders, and therefore not related to employment. He stated that both conditions can become symptomatic with various activities, for example carpal tunnel syndrome can become symptomatic from driving or use of a keyboard; but in neither case is the activity causative, nor does it aggravate the underlying condition. Professor Youssef provided three journal articles in support of the contention that carpal tunnel syndrome is not caused or aggravated by keyboard activity: Jane F Thomsen, Fred Garr and Isam Atroshi, Carpal tunnel syndrome and the use of computer mouse and keyboard: a systematic review BMC Musculoskeletal Disorders 2008;9:134; Isam Atroshi et al, Carpal tunnel syndrome and keyboard use at work: a population-based study Arthritis and Rheumatism 2007;56;3620; Z Mediouni et al, Carpal tunnel syndrome and computer exposure at work in two large complementary cohorts BMJ Open 2015;5:e008156. In all three the conclusion was that there was no positive association between computer use and the incidence of carpal tunnel syndrome.
In oral evidence Professor Youssef said that he found no signs or symptoms of a chronic regional pain syndrome or tenosynovitis on examination; that if tenosynovitis was present in the wrist he would expect to find localised tenderness and swelling over the tendons, but had not; and that there would usually be imaging from an ultrasound or MRI showing inflammation. Nor had he found any indication that Ms Wood had previously suffered from the condition. With regard to chronic pain, that diagnosis applies to longstanding pain without pathological explanation; but here all the pain has an explanation, with the tenderness over the thumbs especially indicative of degenerative disease. Professor Youssef reiterated his view that given the almost complete disappearance of the chronic pain after a month’s rest (as recounted in T22), a chronic pain syndrome could not be diagnosed: such conditions would be unlikely to settle in a month and are hard to treat; but a structural pain might readily settle in that period. As for Ms Wood’s drawing of a distinction between the pain from her thumbs and the tingling and burning she associated with her chronic pain syndrome, Professor Youssef said that difference was readily explained by the distinction between pain from osteoarthritis and that from carpal tunnel syndrome. Professor Youssef explained carpal tunnel syndrome as arising from the compression of the median nerve in the carpal tunnel of the wrist. The nerve serves the palmar aspect of the hand, and pressure on it produces tingling and possibly burning; it is often worse at night and in the morning, and it gets worse with hyperflexion of the wrist. He had done a test of Ms Wood, but the result had been borderline and not definitive; he suspected he was seeing a residual condition.
Professor Youssef said that carpal tunnel syndrome would lead to pain, burning and possibly weakness in the palm of the hand and the thumb and index and middle fingers. The symptoms associated with the space between the fourth and fifth fingers, as reported by Ms Wood in respect of her left hand, did not come from carpal tunnel syndrome; he thought it was more likely to have resulted from trapping of the ulnar nerve and accompanying ulnar neuropathy, perhaps in the inner aspect of the left elbow, or from C8 radiculopathy. Nerve conduction studies and electromyography would enable greater certainty in diagnosis and help distinguish between possible causes.
Under cross-examination Professor Youssef said that the difference between Ms Wood’s accepted conditions and the conditions he had diagnosed would be evident clinically, for example tenosynovitis causes inflammation of the tendons, which would be evident on examination. Carpal tunnel syndrome could readily explain the forearm tenderness and pain – it was common for symptoms to extend as far as the shoulder. The long period in which no diagnosis of carpal tunnel syndrome had been made was a consequence of no-one having undertaken the appropriate tests, and not enough attention to physical examination. Carpal tunnel syndrome should not be missed by anyone familiar with it. Professor Youssef said he was aware of the view that repetitive movement can bring on carpal tunnel syndrome, but he would need to see persuasive evidence from broad-ranging studies before changing his own contrary view; his current view that keyboard work did not cause carpal tunnel syndrome was now mainstream in medical opinion. Regarding the confidence he had in a diagnosis going back more than 15 years, he said contemporaneous notes made at the time of earlier examinations gave him information from which he could draw inferences.
Dr Kostos
On 2 June 2017 Comcare referred Ms Wood to Dr Tony Kostos, a rheumatologist (T26.1). Dr Kostos provided a report (T26), dated 19 June 2017. That report is entirely dismissive of the previous diagnoses of Ms Wood’s conditions, taking the view that “in all probability she never had tenosynovitis”; “She has no evidence of a pain syndrome now and all of her problems relate to her recent surgery for osteoarthritis at the base of her left thumb.” “There are no work-related factors to her current condition.” “There is no causal connection between her osteoarthritis and her employment at the CSIRO.”
In oral evidence Dr Kostos characterised the difference between his approach and that of Professor Youssef as a greater determination on his part to be guided only by the evidence directly available to him. In his view Professor Youssef’s diagnosis of carpal tunnel syndrome was “speculation” about a condition which Ms Wood may have suffered at one time but did not have at present. As for tenosynovitis, that was a condition which was easy to diagnose clinically and easy to treat. In his view, there was no evidence, based on Dr Johnson’s reports, that Ms Wood had ever had the condition. There were no localised symptoms of the kind to be expected and tenosynovitis would not in any case have been a cause of chronic pain. He noted the report from the initial needs assessment made by Incorporating Ergonomics dated 26 February 2003 (T8), based on an assessment on 18 December 2002 by Ms Jenny Kerr, a physiotherapist, in which the pain in Ms Wood’s hands is described as “localized to the bases of her thumbs, back of little and ring fingers”. In Dr Kostos’s view that strongly suggests osteoarthritis and points to onset at the time that Ms Wood became conscious of symptoms.
Dr Kostos therefore took the view that the only pathology to be observed was the osteoarthritis in the thumbs; and that that was the source of all the pain, as other parts of the upper limbs – the forearms, the elbows – were all normal. Keyboard activities might exacerbate symptoms, but they had no effect on the underlying condition, and were not, therefore, an aggravation. Dr Kostos said that he had made no findings regarding Ms Wood’s diffuse pain, as there was no evidence to allow him to do so.
THE ARGUMENTS OF THE PARTIES
Ms Wood’s case theory is straightforward: in 2002 she developed a condition of the wrists as a result of the use of a keyboard and mouse at her work. This was accepted by Comcare, and later Comcare accepted her chronic pain syndrome as a secondary condition. There is now a consistent 16-year medical history, documented in particular by Dr Johnson, her general practitioner, and more recently supported by the report of Dr Harrex. Nothing has changed, and there is no basis for Comcare at this stage to suggest that the entirety of the past 16 years was all in error. Her accepted conditions continue, and she should continue to receive compensation accordingly.
It is Comcare’s case theory that medical evidence recently to hand from Professor Youssef and Dr Kostos strongly suggests that the initial diagnosis of Ms Wood’s condition was “not apt”. If the diagnosis in 2002 was in error, and Ms Wood did not ever suffer from tenosynovitis, nor a chronic pain syndrome, then the question of the nexus with employment needs to be re-examined, along the lines identified in Hannaford. That re-examination leads to the conclusion, relying in particular on the expert opinion of Professor Youssef, that none of Ms Wood’s conditions are work-caused.
CONSIDERATION
The outcome of the case critically depends on the medical evidence, which is the basis for me to decide questions of diagnosis, causation and treatment. The medical evidence in this matter is surprisingly thin. Ms Wood received compensation over a period of more than 15 years with what appears to be no specialist assessment until she attended Dr Vrancic (who is a surgeon) in 2016 and Dr Kostos in 2017.
With the referral of Ms Wood to Dr Kostos and Professor Youssef, and with Dr Harrex’s opinion, new and more specialised reports are now available. Those of Dr Kostos and Professor Youssef, in particular, throw a very different light on Ms Wood’s condition or conditions.
What is the diagnosis of Ms Wood’s condition?
The records of Dr Johnson, Ms Wood’s general practitioner, show an early diagnosis which she then relied on for the years that followed. That is not unexpected, but it is apparent that very little of what was happening to Ms Wood over the ensuing 12 years was the subject of a careful questioning approach: she was not referred to specialists, no second opinions were obtained, alternative options and diagnoses were not explored and very little imaging appears to have been done (it is of course possible that some of these investigations have been done but the results have failed to find their way into the evidence before me). Over that period the diagnosis adopted by Dr Johnson was not brought under any form of challenge or question. In those circumstances, the opinions of relevant specialists whom Ms Wood has now recently seen are clearly highly relevant and likely to be preferred.
Dr Kostos and Professor Youssef are in agreement that Ms Wood has a generalised underlying degenerative osteoarthritis, affecting her thumbs in particular, and that she has had this condition for an extended period. Professor Youssef also draws an inference that Ms Wood in all probability has or had carpal tunnel syndrome; Dr Kostos refused to make that diagnosis on the basis, so far as I can determine, that the signs and symptoms on which he would need to rely were now absent or insufficiently clear and he was not willing to draw the kind of inference drawn by Professor Youssef. Neither Dr Kostos nor Professor Youssef accepted tenosynovitis or chronic pain syndrome as a correct or probable diagnosis. Dr Harrex thought that both those conditions were reasonable in light of the historical information.
I note that Dr Harrex provided a report based on a consultation with Ms Wood. He saw her and asked her for her history and an account of her symptoms, and he used three pain questionnaires to gather information about her pain status. He apparently made no detailed physical examination: there are no reports of tenderness tests, for example, or range of motion tests and the like. Dr Kostos was exceedingly disparaging about Dr Harrex’s report when giving oral evidence, although I am not persuaded that an occupational physician is unable to throw light on a person with Ms Wood’s history. But more troubling is that Dr Harrex limited himself to commenting that the earlier diagnoses seem to have been reasonable; he did not really set out to make the best diagnosis of his own, in light of the history, the notes of previous treating practitioners and Ms Wood’s current state. For those reasons I am reluctant to give his report a great deal of weight.
Dr Kostos’s written report is of limited use to me. It is dismissive in a way that is not helpful to a decision-maker. Dr Kostos relates Ms Wood’s current problems to osteoarthritis of the thumbs, and states that work made no contribution to her condition, but offers no explanation of the period from 2002 to perhaps 2012 when Ms Wood apparently first became aware of her thumbs as a specific problem. The diffuse pain she suffered in her arms over that period, for example, is without explanation. It is not clear that Dr Kostos was provided with the much fuller documentary record provided to Professor Youssef (neither his report nor the briefing letter lists the documents provided to him). Ms Wood suggested that Dr Kostos gave her only a cursory examination and interview, but he disagreed and I do not have a basis for discounting his evidence on that score. I gathered from his oral evidence that Dr Kostos agrees with Professor Youssef that underlying osteoarthritis of the thumbs is a critical element in the history, but his evidence is incomplete and therefore, to some degree, inevitably unpersuasive.
Professor Youssef’s evidence is the most convincing available to me. He has examined Ms Wood thoroughly and I found his reasoning more complete, more persuasive and more detailed. He has drawn on an extensive range of medical records. On the basis of those reports he has identified degenerative osteoarthritis and probable carpal tunnel syndrome as explanations for virtually all of Ms Wood’s symptoms.

Among the reports he saw is that on the X-ray and ultrasound of Ms Wood’s left hand and wrist, from October 2017, which found no sign of compression in the median nerve of the left wrist. Professor Youssef included that report in the list of those he had seen, and provided a brief summary. It may be that he missed the reference to the median nerve (it is not mentioned in his brief summary), but it is clear that the radiologist included it in response to Dr Vrancic’s suspicion regarding possible residual carpal tunnel syndrome, as she asked specifically for the median nerve to be assessed. It is difficult to escape the conclusion that in October 2017, at least, any previous carpal tunnel syndrome on the left had resolved. That does not, of course, exclude carpal tunnel syndrome on the right, or carpal tunnel syndrome at an earlier time on the left. It was on the right that Professor Youssef found possible residual signs of carpal tunnel syndrome, and he appears to have inferred that in the past Ms Wood suffered from that condition bilaterally.
In Rodriguez v Telstra Corporation Ltd [2002] FCA 30 (Rodriguez) Kiefel J noted that where an issue is relegated to experts – there, as here, medical experts – it is not for the tribunal to substitute its own reasoning and inferences for those of the expert witnesses. Rodriguez was endorsed by the Full Federal Court in Comcare v Wuth [2018] FCAFC 13 (Siopis, Flick and Perry JJ). It would be inappropriate for me to attempt to substitute my own conclusion regarding carpal tunnel syndrome for that of Professor Youssef, and in any case his diagnosis is driven by the signs he found on the right rather than on the left. I am therefore inclined to accept that the most likely diagnosis is that at which Professor Youssef arrived, namely degenerative osteoarthritis, especially of the thumbs, but extending to other parts of the musculoskeletal system, and probably carpal tunnel syndrome, which may at this stage be a residual condition. There may also be an element of left ulnar neuropathy or left C8 radiculopathy affecting the fourth and fifth fingers of the left hand.
Does Ms Wood still suffer from these conditions?
Professor Youssef and Dr Kostos were in agreement that osteoarthritis is a permanent degenerative condition; this is a condition that Ms Wood will live with for the rest of her life.
Professor Youssef was not sure whether Ms Wood continues to have symptoms sufficient to support a diagnosis of carpal tunnel syndrome. Dr Kostos thought she did not. Professor Youssef’s evidence suggests that appropriate tests (e.g. nerve conduction tests) could readily resolve the issue.
Do these conditions have the nexus with employment required?
As will be clear from the passage above setting out the relevant provisions of the legislation, the SRC Act divides injuries under the Act into “diseases” and “injuries other than diseases” (the latter sometimes referred to as “frank injuries” or “injuries simpliciter”); the terms “disease” and “injury” for the most part are used in contexts that imply that the relevant nexus with employment has been established. The word “ailment” is used for a disease where that nexus is yet to be established.
Is Ms Wood’s condition a frank injury or an ailment?
There is extensive case law dealing with the sometimes difficult distinction between an ailment and a frank injury (i.e. an injury other than a disease). Relevant cases include Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 (May); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning); Bailey v Broadsword Marine Contractors [2017] FCAFC 219; and Prain v Comcare [2017] FCAFC 143. Generally, a condition that is an injury (other than a disease) will involve “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (Kennedy Cleaning, at 300 (Gleeson CJ and Kirby J)). In May Gageler J referred to an “injury in the ordinary sense” in the following terms: “An injury … is some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not sudden, is at least ‘identifiable’” (at [75]; citations omitted). The plurality in May (French CJ, Kiefel, Nettle and Gordon JJ) understood the drafting of the SRC Act to imply that the first inquiry of the decision-maker is whether the employee suffered a disease; if the answer to that question is in the affirmative, no inquiry regarding an injury other than a disease is required (at [44]; at [73] Gageler J dissented from that construction, taking the view that the questions posed by the subsection did not need to be asked in statutory order).
Ms Wood’s conditions are plainly ailments: they meet the definition of “ailment” as a physical defect or morbid condition; and they developed gradually over an extended period with none of the abruptness or distinct change in state that tends to characterise a frank injury. As ailments, these conditions are “diseases”, and therefore “injuries” under the SRC Act if they are ailments, or aggravations of ailments contributed to, in a material degree, by Ms Wood’s employment at CSIRO.
Were Ms Wood’s conditions contributed to in a material degree by her employment?
Both Dr Kostos and Professor Youssef were adamant that Ms Wood’s employment did not cause her osteoarthritis, and Professor Youssef was equally adamant with regard to carpal tunnel syndrome. Both experts said that Ms Wood’s employment may have made her symptomatic, or more symptomatic, but that there was no change to her underlying pathology. Dr Kostos drew a distinction between “exacerbation” of the symptoms of osteoarthritis by employment, and “aggravation” of the condition (i.e. a worsening of the underlying pathology), which he said did not and would not derive from her employment. Professor Youssef provided the three papers referred to above to support his expert opinion that carpal tunnel syndrome was not caused by keyboard work and use of a mouse, but he stated very plainly that the condition could become symptomatic from various activities, including both activities at work and those away from work, such as driving. This is most plainly put in his written report (with regard, it appears, to both osteoarthritis and carpal tunnel syndrome), as follows:
There is no specific incident at work that has caused any underlying pathology to be worsened temporarily or permanently. Her work would have made her conditions more symptomatic in the same way that the conditions would have become symptomatic when not at work. However, these would have been transient such as documented by Dr Johnson when, after a period of rest, her symptoms improved.
These opinions immediately raise the question whether Ms Wood’s injury is best regarded as an aggravation of two underlying constitutional conditions. The doctors have drawn a clear distinction between symptoms and the medical condition underlying them, but the law does not draw the distinction in the same way. It is well established in the case law that in workers’ compensation the pain that the employee suffers is not distinct from the injury, but part of it. In Commonwealth v Beattie [1981] FCA 88 (Beattie) the Full Federal Court (Evatt, Sheppard and ? JJ), relying on Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, concluded that:
…each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.
That general conclusion – that pain resulting from or increased by work without worsening an underlying condition can be an aggravation under the legislation - is now very well established as a matter of law: see for example Commonwealth Banking Corporation v Percival (1988) 20 FCR 176, where the court (Davies, Sheppard and Ryan JJ) noted (at 180) that:
It is indeed fundamental to compensation law that a symptom of an injury or a disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease.
Other cases leading to similar conclusions include Tippett and Australian Postal Corporation [1998] FCA 335; Mellor and Australian Postal Corporation [2010] AATA 502; Rutledge and Comcare [2011] AATA 865; Fletcher and Comcare [2015] AATA 430; and Comcare v Reardon [2015] FCA 1166.
In the present circumstances the evidence indicates that Ms Wood had one or more underlying conditions that were made symptomatic by her work, without her employment having caused the conditions and without any worsening of the underlying pathology. That certainly is what both Professor Youssef and Dr Kostos said. But there are some caveats within the case law. In Beattie the court said:
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.
Professor Youssef’s comment that either work or non-work activities could make Ms Wood’s conditions symptomatic suggests that this might be an example of the kind of case raised by the above passage, that is, it may be that Ms Wood’s condition was going to become symptomatic regardless of whether she worked or not. But that is not what this case in fact suggests. The uncontested evidence is that her duties were heavily focused on keyboarding and related activities, and her symptoms and their appearance are closely associated with the intensity of her work. I have no evidence to suggest that, in recent years in particular, there are any other activities that are contributing in a similar way or at a similar intensity. The evidence of Dr Johnson at T15 is that with a month off work, Ms Wood’s symptoms almost completely resolved. That suggests to me that her duties at work were the principal factor contributing to her conditions becoming symptomatic. The case is broadly parallel to the circumstances in Anderson and Australian Postal Corporation [2016] AATA 228.
The SRC Act offers a flexible framework that allows the characterisation of and payment of compensation for, work-caused injuries, to be adjusted for changing circumstances and advances in knowledge and understanding. In Hannaford Conti J (at [57]) made this point as follows:
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
Similarly, in Abrahams v Comcare [2006] FCA 1829 Madgwick J noted that it was open to the tribunal, standing in Comcare’s shoes as decision-maker, to reformulate a claim on the basis of new information, including information relating to the medical condition for which compensation was being claimed.
Taking all of the above into consideration, I find that, on the balance of probabilities, Ms Wood suffered originally, when her claim was first determined, from “aggravation of osteoarthritis and carpal tunnel syndrome”; that she continues to suffer from osteoarthritis and may also continue to suffer from carpal tunnel syndrome; and that these conditions were contributed to, and continue to be contributed to, in a material degree, by her employment.
The above finding is based on the onset of Ms Wood’s conditions earlier than April 2007, when the amended SRC Act commenced, and the nexus with employment, for a disease, became that employment must contribute to a significant degree. In my view the evidence clearly shows that the contribution of employment activities to Ms Wood’s conditions becoming symptomatic would meet either test. The date of onset is therefore not determinative of the outcome.
Comcare remains liable at 11 October 2017 and up to the present for medical expenses that Ms Wood incurred in relation to her compensable conditions, to the extent these were reasonable in the circumstances.
Was medical treatment obtained by Ms Wood between 11 October 2017 and the present reasonable medical treatment obtained in relation to her accepted condition?
Ms Wood said at the hearing that since the determination of 11 October 2017 she has obtained no professional medical treatment, not even continuing her slow-release anti-inflammatories (ketoprofen), but rather relying on Panadol Osteo. On that basis the questions that I need to resolve fall away, as there is no claim able to be made for medical expenses from 11 October 2017 to the present. But a certain amount of evidence was advanced relating to ketoprofen, and it may be helpful to the parties if I outline that evidence and draw conclusions about it.
Ms Wood said that Dr Johnson had prescribed ketoprofen for her for a few years. Ketoprofen is a form of non-steroidal anti-inflammatory drug, used, according to Professor Youssef, as an anti-inflammatory and analgesic. He said it was mainly used for treating inflammatory conditions but is also a “minor analgesic”. Ms Wood herself suggested that originally ketoprofen had been prescribed for tenosynovitis, that is, it had been prescribed when Dr Johnson regarded Ms Wood as suffering from an inflammatory condition.
The purpose of the prescription is, so far as I am able to determine, to treat Ms Wood’s pain, which is the main symptom of her injury. In those circumstances it would be odd to conclude that ketoprofen was not provided “in relation to” her accepted condition. The definition of medical treatment in subsection 4(1) of the SRC Act includes therapeutic treatment obtained for the alleviation of an injury.
Mr Snell made some remarks suggesting that the evidence did not support the prescription of ketoprofen for a non-inflammatory condition. It may be that in light of the information to have come forward in the course of the hearing, Dr Johnson wishes to reconsider what treatment may be appropriate for Ms Wood. I do not believe, however, that the evidence supports a conclusion that treatment with ketoprofen would be unreasonable, given that Professor Youssef accepted that it is sometimes used as an analgesic.
No argument has been made to me that any other form of treatment that Ms Wood has undertaken or is proposing is not provided in relation to her condition or is not reasonable.
I find that Comcare is liable, subject to the provision of receipts or other appropriate documentation, for medical expenses sustained by Ms Wood from 11 October 2017 to the date of this decision.
The decision under review is set aside, and in substitution it is decided that Comcare remains liable to pay Ms Wood compensation under section 16 of the SRC Act from 11 October 2017 to the date of this decision.
COSTS
Comcare must pay Ms Wood’s party/party costs and disbursements, as agreed or taxed, in accordance with section 67 of the SRC Act and the tribunal’s “Taxation of Costs” Practice Direction dated 30 June 2015.

78.

79.

80.

81.     I certify that the preceding 77 (seventy seven) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman

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Associate
Dated: 23 May 2019

Date(s) of hearing: 14-15 March 2019

Applicant: In person

Solicitors for the Respondent:

Counsel for the Respondent:

Lehmann Snell Lawyers

Mr Michael Snell