Wood and Comcare (Compensation)

Case [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

  1. 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

  2. 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…

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AGLC
Wood and Comcare (Compensation) [2019] AATA 981
Case
[2019] AATA 981
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Wood against a decision by Comcare regarding her entitlement to workers' compensation. Ms Wood had previously accepted conditions of tenosynovitis and chronic pain syndrome, for which she had received compensation for over 15 years. However, new medical evidence had emerged, suggesting alternative diagnoses including osteoarthritis of the thumbs and carpal tunnel syndrome, and questioning the original diagnoses. The central dispute revolved around whether Ms Wood's current symptoms were contributed to by her employment to the requisite degree, and whether the medical treatment she had received was reasonably obtained in relation to compensable conditions.

The court was required to determine the correct diagnosis of Ms Wood's condition, the causal link between her employment and any diagnosed conditions, and the reasonableness of medical treatment obtained. Specifically, the court had to consider whether the initial diagnoses of tenosynovitis and chronic pain syndrome were accurate, given the more recent specialist medical evidence. This involved assessing the weight to be given to the opinions of Professor Youssef and Dr Kostos, who disagreed with the earlier diagnoses, and comparing them with the views of Dr Harrex, who considered the historical diagnoses reasonable.

The court reasoned that the outcome of the case was critically dependent on the medical evidence. It noted that the initial medical evidence supporting Ms Wood's accepted conditions was surprisingly thin, with little specialist assessment or exploration of alternative diagnoses over many years. The court found that the opinions of the specialists Ms Wood had recently seen, particularly Professor Youssef and Dr Kostos, were highly relevant and likely to be preferred. These specialists agreed that Ms Wood suffered from generalised underlying degenerative osteoarthritis, particularly affecting her thumbs, and that she had had this condition for an extended period. Professor Youssef also inferred that Ms Wood likely had or had carpal tunnel syndrome, a diagnosis Dr Kostos was unwilling to make due to the absence of clear signs. Crucially, neither Professor Youssef nor Dr Kostos accepted tenosynovitis or chronic pain syndrome as a correct or probable diagnosis. Relying on the expert opinion of Professor Youssef, the court concluded that none of Ms Wood's conditions were work-caused.

Consequently, the decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.