WQCL and Comcare (Compensation)
[2022] AATA 2808
•25 August 2022
WQCL and Comcare (Compensation) [2022] AATA 2808 (25 August 2022)
Division: GENERAL DIVISION
File Number: 2020/3594
Re:WQCL
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date:25 August 2022
Place:Sydney
I set aside the decision under review and in its place substitute a decision that the Applicant suffered an injury for which compensation is payable within the meaning of s.14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in relation to her neck, shoulder, arm and hand pain suffered by her after 4 November 2019.
.........................SGD...............................................
Mr Rob Reitano, Member
CATCHWORDS
WORKER’S COMPENSATION – neck, shoulder, arm and hand pain – where Applicant has a pre-existing condition – whether Applicant has a disease – whether Applicant has an injury – whether there was an ailment suffered by an employee – whether the ailment was contributed to, to a significant degree, by the employee’s employment – whether Applicant is entitled to compensation – decision set aside and substituted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss. 4, 5A, 14
CASES
Comcare v Power (2015) 238 FCR 187
Comcare v Mooi (1996) 69 FCR 439
Cosgrove-Kaye v Comcare [2019] AATA 1238
Hopkins v Comcare [2016] AATA 742
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Wuth v Comcare [2022] FCAFC 42
REASONS FOR DECISION
Mr Rob Reitano, Member
25 August 2022
On 31 January 2020, the Applicant submitted to Comcare a workers compensation claim for ‘mechanical neck shoulder arm and hand pain’ that she said was caused by her ‘doing concentrated prolonged keying and mousing to complete a number of spreadsheets and reporting formats to short deadlines in addition to incoming work.’
On 30 March 2020, Comcare decided to reject the workers compensation claim which decision was, on 29 May 2020, affirmed by a review officer.
On 15 June 2020, the Applicant made an application to the Tribunal asking the Tribunal to review the decision rejecting the claim in order to set it aside and to substitute in its place a decision that she has suffered an injury for which compensation is payable within the meaning of s.14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (Act).
I have decided to set aside the decision under review and in its place substitute a decision that the Applicant suffered an injury within the meaning of s.14 of the Act in relation to her shoulder, arm and hand pain suffered by her after 4 November 2019. My reasons for that decision follow.
WORK AND MEDICAL HISTORY
In about April 1993 the Applicant commenced employment as a temporary employee in the Australian Public Service (APS). She became a permanent employee in about August the same year. She has been employed in various positions in the APS since then with her most recent role being as a Community Liaison Officer. In that role, she has been required to undertake amongst other duties what is described as written planning and reporting work which involves sitting at a desk using a computer, keying in information, and using a mouse. The other aspect of her work involves what she describes as ‘public engagement’. For present purposes it does not matter much what ‘public engagement’ involves except to observe that it does not involve keying and mouse work or work that involves the use of a computer. The Applicant described her work generally as involving ‘a heavy workload within a high pressure environment and competing short deadlines, including Ministerial briefs, information and advice’. I will say more about the Applicant’s work later, but it is important to, at least briefly, refer to one other historical matter before doing so.
In June 1996, the Applicant started in a position that involved coordinating training and doing large amounts of typing. The Applicant suffered from pain in her neck, arms and hands. Eventually she was in so much pain that she could not do her work. The Applicant had a significant workload. She was diagnosed by an occupational physician with an ‘overuse syndrome’. She made a workers compensation claim, her duties were changed, she took some leave and about a year later returned to work.
In about October 1996, the Applicant completed a form headed ‘Department of Immigration and Multicultural Affairs - NSW Injury/Illness Report’ which confirmed some of what the Applicant said about what happened to her at about that time. In the part of the form that was headed ‘Incident details’ under the words ‘Nature of Injury or disease’, the Applicant wrote the words ‘Pain in hands, arms, necks, shoulders, upper + middle back, right hip’. Under the words ‘Cause of the incident’, the Applicant wrote ‘Occupational injury sustained through office duties’. Another part of the form was headed ‘Is this incident an aggravation or recurrence of an existing condition’, and the Applicant wrote under that ‘Arm/hand pain occurred late 1993. Back, neck + hip pain has been ongoing while in APS (+ particularly from July to December 1995).’ There was also some evidence that at the end of 1996 the Applicant was having difficulties ‘coping with’ work, in particular her workload and aspects of her work.
In April 2019, the Applicant broke her left ankle as a result of which she took four weeks leave from work. In July 2019, the Applicant suffered increased pain in her left knee. The broken ankle was the subject of some legal process which at times during 2019 proved to be stressful for the Applicant.
On 18 October 2019, the Applicant saw Dr Taifa Ahmed (Dr Ahmed) about matters connected with her knee pain which concerned her getting a parking permit so that she could attend work. At that time, she did not raise anything about neck, shoulder or arm pain because she was not suffering any such pain, but her knee pain was continuing. The Applicant was not only experiencing pain from her knee but also sometimes experienced stress as a result of her knee’s condition.
NECK, SHOULDER, ARM AND HAND PAIN
On 23 November 2019, the Applicant saw Dr Ahmed about ‘sleep and weight loss issues.’ It seems the Applicant did not raise issues concerned with neck and shoulder pain. The Applicant said in her evidence that she may not have raised her neck and shoulder pain during this consultation and the earlier one because she was ‘trying to manage the pain that I was experiencing at work myself’. The Applicant first identified, on her evidence, the symptoms of neck and shoulder pain about three weeks earlier. To some it might seem a little odd that she did not raise the matter with Dr Ahmed when she saw him. It is not helpful to speculate about the reasons why the Applicant may not have raised issues about her neck and shoulder pain at that time, but one can well imagine if her focus was on other matters, she may well have not raised the issue of neck and shoulder pain perhaps in the hope that it was a temporary passing thing or, that she did not consider it would become so serious a matter or, both of those things. As I have said it is not helpful to speculate.
On 28 November 2019, a ‘Workstation Assessment’ was undertaken between the Applicant and Ms Tran. The following day a Workstation Assessment Report was prepared. The report said that the Applicant reported that she began experiencing ‘some discomfort approximately 3 weeks’ earlier’ following a move to a new office and her being involved in a large project that required her to ‘repetitively use the mouse and keying within a tight timeframe to complete the task’. The report said that ‘[The Applicant] advised that she is able to perform daily activities as per normal, however she experiences pain when doing so’. The report said the Applicant considered her symptoms were due to ‘a flare up of the initial injury in the 1990s, which was diagnosed with RSI (Repetitive Strain Injury)’. The report made some recommendations about a particular kind of mouse and document holder that should be used and also made recommendations about stretching and rest breaks that the Applicant avail herself of. It was also recommended that the Applicant seek medical advice from her treating doctor and physiotherapist for management of symptoms. It will be seen shortly that consistent with the advice recorded in the report the Applicant saw her doctor that day and her physiotherapist a few days after that.
It is convenient to note that in her evidence before the Tribunal, the Applicant repeated a number of times evidence to the effect that ’in the last quarter of 2019’ her work changed so that the amount of ‘keying and mousing work’ increased and the amount of work time spent doing ‘non-keying’ work decreased. In addition, much of the work she did albeit involving similar things to what she had done before, increased in frequency. So, for example, the Applicant was required to key in data whilst looking at two computer screens which required her to more frequently move her head from left to right and right to left. The Applicant had done that before but in the latter months of 2019 and in January 2020 she was required to do that ‘much, much more often’ than before. Also, because there was more copying and pasting there were changes in the detail of the movements that she was required to make. In addition, the Applicant said that these things happened in what she considered to be an ‘already heavy workload’ and a ‘high pressure environment’ which carried ‘competing short deadlines.’ This was in a context where the Applicant believed that aspects of her work environment as a result of the office move were ‘unergonomic’.
I accept the Applicant’s evidence about the changes to her work in the latter part of 2019 (and in early 2020) as well as her evidence concerning her increased and changed workload at the time as well as her evidence about the increasing pressure of the deadlines she was required to meet. I accept her evidence about the pain she was experiencing over that time. Her evidence generally is consistent with what she said at the time the events were taking place. I also accept that at least so far as she saw things, there was an ‘unergonomic’ work environment due to the changes to her physical work environment. I need to make clear that I am not persuaded that it was in fact the case as there is insufficient evidence to make any such finding about the work environment being ‘unergonomic’. But as I have said, from her point of view, the change to her work environment was one that made her workspace ‘unergonomic.’ It is reasonably clear that, for the Applicant, the changes brought to her work and workplace in late 2019 and early 2020 were a source of much stress, which she experienced from sometime around early November 2019.
I also accept her evidence about the neck, shoulder, arm and hand pain she was experiencing from about early November 2019 and so far as is relevant, her evidence about the pain she suffered after then. I accept that between her first awareness of her symptoms and late November, she was attempting to use the workplace assessment process with which she appears not to have been familiar. Although at times some of her answers in evidence were ‘defensive’, I consider overall that much of that was because of her unfamiliarity with the process before the Tribunal more than anything else. I found the Applicant to be an honest and reliable witness, especially so far as important matters were concerned. Her evidence had not just a ring of truth about it because of the way it was given but also because it had a consistency about it especially so far as it went to her recounting matters of history.
Returning then to the chronology. On 29 November 2019, Dr Ahmed issued a medical certificate that said ‘I have examined [the Applicant] on 29/11/2019. She is suffering from neck, upper back and arm pain and is receiving medical treatment’. According to the doctor’s record of the consultation the Applicant also told her about her ‘left knee pain – arthritis and meniscal tear’ and had a ‘long discussion about stresses at work, how she is managing with her left knee pain and restrictions’. It is a little important that at this stage, the Applicant herself was identifying the ‘stresses’ she was having at work.
On 4 December 2019, Ian Hwang (Mr Hwang), a qualified physiotherapist prepared a letter to the Applicant’s doctor, Dr Greenhalgh, which was described as ‘a physiotherapy report on [the Applicant]’. The report identified the reason for the consultation as ‘neck pain’ and ‘headaches’. The report ‘diagnosed’ ‘C1 and C2 associated headaches’ and ‘Mechanical neck pain’. The report did not say anything about back pain or arm pain. The report referred to the need for physiotherapy ‘to continue treating the stiffness in the joints of the neck and correct the dysfunction in the upper joints of the neck to address her headaches’. Mr Hwang also expressed the opinion that ‘[w]orkplace modification is suggested as prolonged sitting in poor posture contributes to both neck and headaches. Simple exercises for joint stiffness and neck strengthening have been provided’.
Between 29 November and 20 December 2019, the Applicant had about six physiotherapy and massage sessions and at work had ‘regular and frequent stretch and exercise breaks when possible’. Her work tasks remained the same; that is, they involved the increased amount of work involving keying and mousing and tight time frames to complete her work to which I referred to previously.
Between 23 December 2019 and until 10 January 2020, the Applicant took annual and other leave and so was not at work. Her evidence was that her symptoms improved in that period ‘to a degree’. The Applicant had a medical procedure performed on her knee on about 10 January 2020.
On 13 January 2020, the Applicant returned to work and was again met by a heavy workload with what she described as ‘short deadline tasks…requiring heavy keying and mousing’. The stresses that existed before she left work on 23 December 2019 remained. The Applicant’s symptoms worsened that week. The Applicant was given some extensions in relation to completing some of her work.
On 16 January 2020, Dr Ahmed examined the Applicant and issued a further medical certificate which said that the Applicant ‘is suffering from musculoskeletal pain affecting her shoulders, neck and upper back (particularly the right side) and is receiving physiotherapy. It would be recommended if she is able to have more regular breaks and adequate time (i.e. adjustment of deadlines) to manage her duties’. The medical certificate was given to the Applicant’s manager at work.
At some stage during the week of 20 January 2020, the Applicant was required to work in a different building because the parking permit she had for her usual building had expired. That permit had been given to her because of her knee injury. In that week the Applicant continued to undertake keying and mousing work in what she considered to be an ‘unergonomic arrangement’. She was unable to work without very significant pain and considered she was at risk of further injury.
On 28 January 2020, the Applicant went on leave and was off work for about three and a half months. Technically, the Applicant’s last day at work before her leave was 24 January 2020 because there was a long weekend between her last day at work and the day she commenced her leave.
On 29 January 2020, Dr Kwong, a general practitioner, signed a medical certificate that certified the Applicant as unfit for work for the period from 28 January 2020 until 28 February 2020. The medical certificate identified ‘clinical symptoms/diagnosis’ as ‘Mechanical neck shoulder arm and hand pain, especially Right side started November 2019. Thought to be due to keyboarding and computer mouse work, increased duration and intensity’. The medical certificate recorded that the Applicant was ‘first seen in relation to this condition at this practice’ on ‘29/11/2019’ and recorded that the date of the injury was 4 November 2019. The medical certificate went on to say ‘This [presumably a reference to the ‘clinical symptoms/diagnosis’] was caused by increased workload, involving more keyboard and mouse work, short deadlines, long hours’.
On 31 January 2020, the Applicant submitted a workers compensation claim form. The form asked for some detail about the injury. The Applicant recorded that the ‘condition’ she was ‘claiming for’ was ‘mechanical neck shoulder arm and hand pain’. The Applicant recorded that the claim was for ‘a physical injury or disease’ which affected the ‘neck, shoulder/upper back, arms and hands’. The Applicant said that she was ‘keying and mousing’ ‘when [she was] injured’. The Applicant said in answer to the question ‘[w]hat happened and how were you injured?’ that she was ’doing concentrated keying and mousing to complete a number of spreadsheets and reporting formats to short deadlines in addition to incoming work’ and that she first noticed her ‘symptoms/injury’ at 9:00am on 4 November 2019. At the time that she filled out the form the Applicant contemplated returning to work in ‘less than four weeks’. Again, the Applicant’s evidence was consistent with what was said in the form.
Also, in the form, the Applicant said she had ‘experienced similar symptoms and injury caused by mouse and keying work in 1996’ which resulted in her having ‘time off work to recover’ with a ‘graduated return to work’ accompanied by ‘workstation modifications as well as physical therapies’. That claim resulted in ‘[p]ain and lack of movement and range to upper body and limbs’ and, significantly was ‘[d]iagnosed as overuse injury due to keying and mousing’. The parts of the body affected at that time were ‘Neck, shoulders, upper back arms and hands’.
After 31 January 2020, and after 10 February 2020, the Applicant continued to experience significant symptoms [pain in her neck, shoulders and arms] and received ongoing treatment from Dr Greenhalgh and from Dr Thakkar and then others by way of physiotherapy.
On 10 February 2020, the Applicant saw Dr Greenhalgh because her pain was increasing. The Applicant said that she thought the pain was increasing because she had to ‘write the claim etcetera which was difficult’. The reference to ‘the claim’ was a reference to the claim that is the subject of this matter. Although this was about two weeks after the Applicant commenced her period of absence from work, it is not unimportant that it was after the Applicant had first experienced the symptoms she complained of in late November 2019, when she was at work and after she had returned to work in January 2020 for about two weeks when her symptoms deteriorated to the extent that she could not work. It is important that the Applicant could not work because of the pain and because of that, when she did work involving tasks such as typing she suffered from the pain again. There is nothing much surprising about that. It does not detract from the probability that the cause of the pain in the first place may have had its origins in the workplace.
Dr Greenhalgh wrote in her progress notes in relation to the consultation that day: ‘Has been off work since 28/1 pain became prohibitive to work and pervasive even when not at work; symptoms are neck pain both sides right >left; shoulder pain right>left; heavy feeling in right arm; pins and needles in both hads (sic)/fingers. Had physio from Nov-[Dec] 6 to try to self-manage; also took a longer break at Christmas to try to improve it – 3 weeks- and it did improve-but on return to intense workload in New year - symptoms returned to worse than it was prior to November…Since being off work, symptoms are slightly less but not as much as over the Christmas/ New Year leave…Examination: tender bilat neck over lower facet [joints]; [movements] limited in all direction by stiffness…Reflexes equal and present both sides. No muscle wasting strength equal both sides. Both shoulders fully abduction without pain. Right internal rotation s1 limited.’ It should be borne in mind that the Applicant was reporting that her symptoms had in fact improved since she was not at work, albeit ‘slightly’. The notes also referred to ‘one aspect of work is short deadlines and pressure’. Dr Greenhalgh requested a CT scan of the cervical spine.
It is important to refer to Dr Greenhalgh’s later letter of 11 May 2021 which was prepared specifically in response to matters contained in contentions advanced by Comcare in this review. In that letter Dr Greenhalgh said that ‘This clarification is important because particularly in 37(f) [a reference to Comcare’s contentions] I believe my meaning may have been misconstrued. The paragraph states consultation notes from Dr Greenhalgh where it is noted on 10 February 2020 that the Applicants pain was pervasive even when at home and on 6 April that she suffers pain even when typing at home. This is because it is not the features of the Applicant’s employment that causes pain but rather that there is simply certain tasks which the [A]pplicant cannot do without suffering pain due to her pre-existing degenerative and constitutional condition. As stated above, my implication was that the work-place induced symptoms were severe enough to be causing pain even out of the work-place while the patient was on leave’. I do not consider that this changes things at all and in any event as will become clear, I have given greater weight to the specialist evidence than that of the other medical practitioners.
On 10 February 2020, Dr McInerney prepared a report as a result of him conducting a CT scan on the Applicant’s cervical spine. The report recorded a finding of ‘developmental fusion of C2 to C3’ and ‘Multilevel severe foraminal stenosis as listed above’. The ‘listed above’ recorded at C3/C4 ‘severe right foraminal stenosis’, at C4/C5 ‘severe right and moderately severe left foraminal stenosis’ and at C5/C6 ‘very severe left foraminal stenosis and severe right foraminal stenosis’.
On 21 February 2020, Dr Greenhalgh wrote a report that recounted some of the history and then recorded ‘Diagnosis is neck pain with radiation to both shoulders and to right arm and hand due to multilevel facet arthropathy with foraminal stenosis at C4/5, C5/6 and C6/7 as well as trapezius muscular strain’. The report canvassed again what were the obvious and well known symptoms of pain and limited neck movement and recorded the prognosis as being ‘uncertain and will depend on ability to control trigger factors such as workplace ergonomics as well as response to physiotherapy and anti-inflammatories’. The report referred to ‘the employment factors resulting in [the] development of symptoms’ as ‘seeming’ to ‘include unergonomic work station and work volume and intensity’. Dr Greenhalgh expressed the opinion that the condition ‘is a recurrence of symptoms from an underlying condition (facet joint arthropathy and foraminal stenosis at several levels of the cervical spine) precipitated by workplace conditions’, which were the unergonomic work station and the work volume and intensity that had been earlier referred to. It is only necessary at this point to observe that facet joint arthropathy and foraminal stenosis are both degenerative conditions. Dr Greenhalgh said that ‘other factors could contribute to the current symptoms…and the workplace would seem to be the primary contributor in this case’.
On 10 March 2020, Associate Professor Vivek Thakkar (Associate Professor Thakkar) prepared a report in which he recorded his diagnosis as ‘Chronic neck regional pain syndrome driven by degenerative disease in [the Applicant’s] neck with likely nerve compression at C5/6, tight paraspinal muscles and stress’. The ‘Summary and recommendations’ part of the report recorded that ‘[The Applicant] has a pain syndrome involving her neck that is driven by degenerative disease, tight paraspinal muscles and a chronic high tension work environment along with a lack of ergonomic adjustments to try and see if positionally she could have improved’’ An MRI of her neck was requested.
On 15 March 2020, a report of the results of an MRI scan was produced by Dr Niranjan Ganeshan which found ‘congenital anterior and posterior cervical fusion at C2-3’ and ‘severe discovertebral changes with multilevel facet joint arthropathy and degenerative spondylolisthesis at C4-5. There is mild cord compression at C4-5 and there is multilevel foraminal stenoses outlined with root impingement’.
On 17 March 2020, Associate Professor Thakkar prepared another report having received the MRI results. The diagnosis did not change but in the body of his second report, it was recorded that ‘[The Applicant] clearly has quite significant degenerative change in her neck’ and went on to record the opinion that the symptoms in the right neck were the result of ‘very tight facets and nerve root compression at least at C5 and probably at C6’.
On 30 March 2020, Mr Hwang wrote another report in which he ‘diagnosed’ ‘C/sp Radiculopathy’. The report proceeded like his earlier and later reports on the basis that ‘[the Applicant’s] symptoms must be related to her work… Because that was – yes, that was the initial complaint. So we go off (indistinct) yes’.
On 31 March 2020, Associate Professor Thakkar wrote a letter that included the observation that ‘[The Applicant] seemed to want me to advocate for her problems being work-related and to take this up with Comcare, and I had to spend time explaining the nature of the process that has begun, and without any request for further information or specific report from Comcare there was little that I could add at this stage’. The Applicant denied she sought from Dr Thakkar any advocacy on her part and said that she in effect asked the Associate Professor to provide further information because she considered the questions asked of him by Comcare ‘were restrictive’. I do not consider that anything much can be made of this as it is very likely the product of statements made by someone who is, in fact, unfamiliar with the process and considers they are justified in pursuing their claim. To some extent it was also reflected in some of the Applicant’s answers in cross-examination which in my assessment did not reflect adversely on her credit but rather demonstrated very much the Applicant’s failure to understand what Associate Professor Thakkar referred to as ‘the nature of the process’.
On 6 April 2020, Dr Greenhalgh recorded in her notes of a consultation that the Applicant said something along the lines of ‘that even with doing typing at home her neck pain and referred right arm pain flares’. Again, it needs to be remembered that this was well after the Applicant first experienced her symptoms at work.
On 6 May 2020, the Applicant commenced a graduated return to work programme and eventually returned to work full time.
SPECIALIST MEDICAL EVIDENCE
After the Applicant returned to work, three specialists provided reports expressing opinions concerned with the origins of her symptoms of neck, shoulder, arm and hand pain. The first of these was Associate Professor Thakkar who had seen the Applicant before but the other doctors were Dr Andreas Loefler (Dr Loefler), an orthopaedic surgeon, and Professor Peter Youssef (Professor Youssef), a specialist rheumatologist both of whom the Applicant had not seen before. It is convenient to deal with what they each said in turn rather than to deal with their evidence chronologically.
On 13 May 2020, Associate Professor Thakkar wrote that the Applicant has ‘advanced background degenerative neck disease, and this would considerably lower her threshold to both have increasing flares and exacerbations and potentially progression over time’. The report said that ‘I would regard this as an aggravation/exacerbation or continuation of a pre-existing condition, rather than a new injury that has been attributed to the 4 November 2019’. The most significant aspect of Associate Professor Thakkar’s report was that he expressed the firm opinion that ‘The extent and severity of the neck degenerative change on her imaging would not, conceivably, be attributed (sic) the nature of her reported work. However, it is conceivable that if there was a significant change in the nature and duties related to her work contributed to by stress and pressure requirements, that it may have contributed to potential flare up ultimately leading to her reporting a date of injury as of 4 November 2019’. The Associate Professor pointed out that he was relying on self-reporting about the nature of any changes as he had no other material available to him about them.
On 11 May 2021, Associate Professor Thakkar concluded in a report that ‘My overall summary is that [the Applicant] does have degenerative neck disease and I have detailed this in previous correspondence (congenital C2/3 fusion, multilevel facet joint arthritis, severe discovertebral change reflecting degeneration to C4/5 where there is canal stenosis that was mild and root impingement, although there were some changes above and below this level). Much of her problems were a flare-up of this with tight neck paraspinal muscles all contributed to the change in her workplace environment and substantial pressures’.
On 15 June 2021, Associate Professor Thakkar provided another report and repeated his opinion that ‘…I felt she had a flare up of neck pain that was driven by tight paraspinal neck muscles, degenerative neck disease and a chronic high tension work environment. This has been repeated in multiple reports, and this was consistent with my assessment and the investigations. I would not regard work as causing the extent of her neck degenerative disease, but I would regard work as a potentially exacerbating and aggravating factor for her neck pain … There is no doubt that soft tissue aggravation was part of her neck pain’.
On 27 July 2020, Dr Loefler, an orthopaedic surgeon, wrote a letter in which he expressed the opinion that ‘This lady’s history of neck and arm pain is more likely to be related to stress and overwork, than her physical condition’. Dr Loefler in expressing that opinion had been provided with the MRI scans that I referred to earlier. In his evidence in the Tribunal, Dr Loefler referred to there being ‘excessive demands’ that resulted in the Applicant’s ‘muscle tension and neck pain’. Naturally enough in forming that conclusion and the conclusion concerning ‘stress and overwork’ and ‘excessive demands’, Dr Loefler relied entirely upon what the Applicant told him about her work. I will return to Dr Loefler’s evidence later because it is instructive.
On 14 December 2020, Dr Loefler expressed the opinion that the Applicant has ‘cervical spondylosis which certainly can be exacerbated by posture and by long working hours. In addition, I believe that there is a correlation between neck pain and stress’. Doctor Loefler continued ‘[The Applicant’s] condition is certainly related to her cervical spondylosis and due to muscle tension. It is not always possible to give a condition a clear diagnostic label and I have explained this to her’.
On 17 June 2021, Dr Loefler provided a further report in which he said that he believed that ‘[the Applicant] was suffering from symptoms consistent with muscular pain and tension as a result of the psychological stress in her workplace’. Dr Loefler went on to express the opinion that ‘stress is a powerful force and can effect physical symptoms such as neck pain, shoulder pain, back pain as well as other symptoms such as loss of hair, eczema, weight loss, weight gain and peptic ulcers. Such symptoms are not infrequent. Based on [the Applicant’s history], my physical examination and her investigations as well as her current ability to work, I do believe that her symptoms were related to stress caused by a heavy workload and by ever changing deadlines. I do not think her symptoms are related to cervical degeneration or to an injury as such’.
In his evidence to the Tribunal, Dr Loefler elaborated in cross examination on his reports and said:
MS BORTONE: Right. So, having regard to the totality of your reports; is it an accurate conclusion that, in your opinion, [the Applicant’s] symptoms were related to stress and her symptoms are not due to cervical (indistinct words) general to an issue as such?
DR LOEFLER: So, there is some question of what is an injury. We now get into some semantics, what is an injury. But, let's say the symptoms which the patient at the time reported to me, caused me also to ask further questions, as we do with other patients as well, in regards to sport and in regards to physical activities, and also in regards to the other demands which a job may place upon a person. And the relationship between stress, the relationship between tightness in muscles, posture, overwork or demands at work, I should say, is actually well known in medicine, this is nothing new which I have invented. And very often we get patients who come to us with pain in the upper thoracic region, in the neck and in the shoulder, and very often there's in fact absolutely no change on X-rays and yet the symptoms are real. So, then I have to make a decision, is it more likely that this lady has symptoms due to the C4-5 changes in her neck or more likely due to the effects of, let's say in this case, overdemanding responsibilities at work which cause, in many people, physical symptoms? So, it was my view that putting it altogether in this lady, that the more likely was that in fact she was suffering from symptoms related to tension, stress, and the demands of her work. And that's why I definitely advised against any form of injections or surgery on such a disc, but on a change of activities.
MS BORTONE: And when you say 'stress at work'; is that because that's what [the Applicant] told you was causing stress for her?
DR LOEFLER: Of course, I didn't go to the work. I rely entirely on a patient's description. Now, the interesting thing is that, subsequent to that, I have seen her on a number of occasions and in fact her symptoms have settled and she's back working in another place and her condition has entirely improved. Whilst, if we were to take another MRI today, we would no doubt see exactly the same degenerative changes which were seen last year on the MRI.
…
MS BORTONE: And it remains your opinion that what she was experiencing was a pain reaction of some description at that time?
DR LOEFLER: We see these quite regularly. This is not actually like an isolated situation. And the fact that [the Applicant] has since improved quite dramatically, to me is actually in keeping with my original opinion that there were excessive demands and people react to that. Now, some people get pain in the neck, others get an ulcer in their stomach, others get eczema, others lose their hair, others become alcohols; we have a whole lot of different ways of reacting to stress. But, muscle tension and neck pain is actually a common form. (The underlining is added.)
On 29 October 2020, Professor Youssef, a specialist rheumatologist, examined the Applicant. He prepared a report on 25 November 2020 as a consequence of that examination. The report said:
The most recent flare of symptoms was during the last three months of 2019 with pain in the neck, both shoulders, radiating into the arms. She has been examined by her general practitioner, a rheumatologist, spinal surgeon and myself with no objective evidence of any neurological abnormality. There was no clinical evidence of a cervical radiculopathy. An MRI of the cervical spine performed on 15 March 2020 was documented as showing a congenital fusion at C2/3 and foraminal narrowing at multiple levels including C3/4 where there was right paraforaminal disc protrusion with right C4 impingement but no cord compression, C4/5 where there was bilateral severe facet joint arthropathy and a spondylolisthesis and a pseudo disc bulge with mild cord compression and high grade right paraforaminal stenosis and impingement of the right C5 nerve root as well as C5/6 there was facet joint arthropathy and bilateral C6 nerve root impingement. It is likely that some of her symptoms were due to the underlying degenerative disease, however as previously in 1996, there appears to have been a significant psychological component to her symptoms. (Underlining added)
That report observed that the kind of work the Applicant was doing, described as ‘sedentary’ and would not have caused ‘a structural change in her spine causing such severe symptoms’. The report went on to say ‘Although I am not a psychologist or psychiatrist, [the Applicant] appears to develop physical symptoms when she feels that the pressure at work is too great and she appears to be unable to cope with the workload’. The reference to the correlation was not simply between, ‘symptoms’ and ‘work’ but rather ‘symptoms’ and ‘when she feels that the pressure at work is too great and she appears to be unable to cope with the workload’ will later be seen to be important.
The report reiterated the Applicant’s ‘significant degenerative disease at multiple levels from C3/4 to C5/6 which is due to a combination of constitutional degenerative disease and the effects of the congenital fusion’. Professor Youssef expressed the opinion by reference to literature dealing with the subject matter that ‘the condition of cervical degenerative disease is not contributed to or aggravated to a significant degree by [the Applicant’s] employment which is essentially sedentary’. Professor Youssef specifically disagreed with Dr Thakkar so far as any ‘implication that her work was such that it would aggravate or exacerbate the underlying disease progression’, but correctly ascribed to Dr Thakkar the view that the Applicant’s ‘symptoms may have been contributed to by stress and pressure requirements’. Professor Youssef did not consider that he could comment on that latter aspect of Dr Thakkar’s opinion because it was ‘essentially a psychological condition and not within [his] area of expertise to comment upon’. Professor Youssef, although having Dr Loefler’s report of 27 July 2020, and noting its contents, in particular that ‘[the Applicant’s] history of neck and arm pain is more likely to be related to stress and overwork than her physical condition’, expressed no opinion about it in his report.
On 16 April 2021, Professor Youssef prepared a further report largely in response to criticisms made by the Applicant of his earlier report. One aspect of his further report was directed to the question ‘Why [the Applicant] allegedly began suffering a recurrence of symptoms in and around October 2019’ and whether in Professor Youssef’s opinion such recurrence would have been contributed to by her work either at all, and if so, whether it could be to a significant degree. The question invited Professor Youssef to indicate if there was not sufficient material to express an opinion about the question. Professor Youssef said:
The MRI scan performed on 15 March 2020 showed a right paraforaminal disc protrusion at C3/4 with right C4 impingement and there was bilateral severe facet joint arthropathy at C4/5 with high grade right paraforaminal stenosis and impingement of the right C5 nerve root. There was also severe facet joint disease at C4/5 with a spondylolisthesis. Therefore, it is likely that her symptoms in October 2019 were radicular in origin caused by compression of the right C5 nerve root by the underlying degenerative disease. It is possible that the paraforaminal disc protrusion as C3/4 occurred at that time causing leakage of disc material into C4 causing pain in the right side of the neck and above the shoulder. Working on computer spreadsheets would not cause a disc protrusion or progression of the cervical degenerative disease. I have provided literature supporting my opinion that [the Applicant’s] work was not such that it would cause disease or a radiculopathy. It is my opinion that her work was not contributory at all to the development of this acute pain.
After being specifically directed to Dr Greenhalgh’s notes of her consultation of 10 February 2020, Professor Youssef expressed the opinion:
This record tells me that she developed an acutely painful condition that was painful at work and when not at work which is not surprising as the most likely cause of her pain was a cervical radiculopathy. It is not surprising that there was also pain on both sides of the neck due to the underlying degenerative disease. Dr Greenhalgh documents the presence of a heavy feeling in the right arm, pins and needles in both hands and fingers and documents that there was shoulder pain greater on the right than the left. These are consistent with cervical radiculopathy. Cervical radicular pain can present as a heavy feeling with pins and needles. This note also documents that there was improvement over three weeks. The general practitioner’s note documents that [the Applicant’s] symptoms were more intense on returning to work but only slightly when off work. This suggests that she had a condition that caused pain at work and pain when not at work, consistent with a cervical radiculopathy and cervical degenerative disease. With regards to the examination findings on 10 February, there were no neurological findings in the upper limbs indicating that there was no damage to nerve roots caused by compression. The presence of tenderness over both sides of the neck over the lower facet joints with limited movements is consistent with the underlying degenerative disease.
The observation about the most likely cause being cervical radiculopathy was a little curious given that Professor Yousef had earlier said there was no clinical evidence of it and he had at the earlier time the notes to which his attention had been specifically drawn.
Professor Youssef concluded his second report by repeating what he had said earlier that ‘her overall trajectory cannot be explained simply on the basis of degenerative disease dating back to 1993 and that a psychological component to her presentation needs to be considered’. The reference to their being a ‘psychological component’ is not elaborated on other than by reference to what was said in the earlier report. Professor Youssef also pointed out in his report that ‘neck pain is common in the community and…can occur in workers which is not surprising’.
In his oral evidence Professor Yousef was asked about an aspect of Dr Loefler’s opinion that had regard to the fact the onset of pain had occurred whilst at work which progressively got worse and which after a period off work went away. Doctor Loefler expressed the opinion that ‘[a]s a matter of common sense what was different, we took work out of the equation and the back got better’. Professor Youssef said:
What I say is that, firstly, these sort of presentations in practice are very common and it just happened to happen at work and she was quite symptomatic when not at work, and this can take a while to settle. I think in my report I’ve said I think that there is a psychological component to her symptoms and we see this often in practice where the pain is out of proportion to what we find physically and whether being off work reduced her stress levels and that may have caused improvements as well. She’s now back at work and is asymptomatic and doing, you know much the same duties, although with less stress at work is my understanding. So I think this was just going to happen whether she was working or not at the time. She’d had previous flares and will probably have flares into the future. She has progressive cervical degenerative disease.
There are three other aspects of Professor Youssef’s evidence that are particularly worth noting. First, when asked if what the Applicant told him about her duties (which was recorded at the beginning of his report and involved things like turning the head between two computer screens) could have caused a ‘soft tissue injury’ he said that ‘they would not have injured the cervical spine and those tasks would not have caused severe acute neck pain that [the Applicant] complained of that actually took [the Applicant] off work so that [the Applicant was] unable to work – or [the Applicant] were off work for a period of time. So, no, those tasks would not have done that’. Second, Professor Youssef said that the severe symptoms suffered by the Applicant were seen ‘in people with severe cervical degenerative disease. Not uncommonly, they can get flares and it is hard to know what the flares are due to. I note at the time she had some problems with her leg, she had problems with parking. You know, it’s very hard to know what caused this sudden acute flare of pain’. Third, Professor Youssef’s evidence was that ‘You know, people with degenerative disease get attacks of pain over the years, and you happen to be working at the time. This is a common thing I see in practice, very common’.
LEGISLATIVE FRAMEWORK
Section 14(1) of the Act provides:
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.
There was no issue that if the Applicant suffered an injury it resulted in her incapacity for work.
Section 5A of the Act defines injury:
"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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
Section 5B of the Act provides:
“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.
Section 4 of the Act defines ‘ailment’ as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
In Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (May) the majority, French CJ, Keifel, Nettle and Gordon JJ. dealt with the approach to be taken to the determining whether someone had an ‘injury’ within s.4(1) of the Act. The majority said:
[50]First, does the evidence amount, relevantly, to something that can be described as an "ailment", being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
[51] If the answer to both those questions is "Yes", there is a "disease" within par (a) of the definition of "injury". Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is "No".
[52]If there is not a "disease" within par (a) of the definition of "injury", the tribunal of fact next inquires whether there is an "injury (other than a disease)" within par (b). The third question is – does the evidence demonstrate the existence of a physical or mental "injury" (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an "injury (other than a disease)". The language of judgments should not "be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act.
[53]If there be an "injury" in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered "Yes", there is an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. In some circumstances, if the answer is "No", it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
As will be seen it is not necessary in this case to go beyond the first and second questions referred to by the majority in May. The two matters that need to be addressed are first whether the Applicant suffered an ailment and second whether that ailment was contributed to, to a significant degree, by her employment. I will deal with them each in turn.
‘AN AILMENT SUFFERED BY AN EMPLOYEE’
So far as the question of ‘ailment’ is concerned, the Full Court of the Federal Court of Australia in Wuth v Comcare [2022] FCAFC 42, in dealing with the statutory definition of ‘ailment’, observed that the words ‘any physical or mental ailment, disorder, defect or morbid condition’ were words ‘of ordinary meaning’ (Wheelahan J at [110] with whom Griffiths J at [1] and Snaden J at [127] agreed) which do not require the identification of physiological change which is the ‘hallmark of an “injury” in the primary sense’ (at [110]).
The observations of Drummond J in Comcare v Mooi (1996) 69 FCR 439 at 443 – 444 are also relevant and although directed to ‘mental ailments’ there is no relevant difference so far as ‘physical ailments’ are concerned:
There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person’s mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purpose of s 14(1) of the Act.
The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee’s mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe...But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible [sic] under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
The existence of symptoms of pain in the absence of precise identification of their origin or of a medical diagnosis has been to held to be capable of constituting an ailment within the meaning of the Act (Hopkins v Comcare [2016] AATA 742; Cosgrove-Kaye v Comcare [2019] AATA 1238). That is a little unsurprising given that the word ailment carries its ordinary meaning.
I have accepted the Applicant’s evidence concerning her neck, shoulder, arm and hand pain and find that from early November 2019 the Applicant suffered from neck, shoulder, arm and hand pain. The entire history of her attendance upon medical practitioners and complaining about her pain supports her having suffered an ailment. All of the medical practitioners who the Applicant consulted accepted that she was suffering from neck, shoulder, arm and hand pain. That pain meant that she was suffering an ailment whether it be an ailment in the ordinary sense of that word or in the sense of a ‘defect’ or ‘disorder’. On any view of the ordinary meaning of those words, the Applicant was suffering an ailment.
The Respondent conceded that the Applicant suffers from a degenerative condition and congenital condition. The results of the MRI scan reported on 15 March 2020 identified ‘congenital anterior fusion and posterior cervical fusion at C2/3’ and ‘severe discovertebral change with multilevel facet joint arthropathy and degenerative spondylolisthesis at C4-5. There is mild cord compression at C4-5 and there is multilevel foraminal stenoses outlined with root impingement’. That condition was referred to in the various reports of Associate Professor Thakkar and by others. That is an ailment as well, but the sharply focussed issue is whether that condition, or its aggravation was the cause of the Applicant’s acute pain or whether something else was.
Associate Professor Thakkar originally put the Applicant’s pain down to ‘a pain syndrome involving her neck that is driven by degenerative disease, tight paraspinal muscles and a chronic high tension work environment along with a lack of ergonomic adjustments to try and see if positionally she could have improved’ and in his last report to a ‘…a flare up of neck pain that was driven by tight paraspinal neck muscles, degenerative neck disease and a chronic high tension work environment. This has been repeated in multiple reports, and this was consistent with my assessment and the investigations. I would not regard work as causing the extent of her neck degenerative disease, but I would regard work as a potentially exacerbating and aggravating factor for her neck pain … There is no doubt that soft tissue aggravation was part of her neck pain’.
Dr Loeffler was dismissive of the Applicant’s acute pain being caused by her degenerative condition expressing the view that ‘her symptoms were related to stress caused by a heavy workload and by ever changing deadlines’ and that it was ‘more likely was that in fact she was suffering from symptoms related to tension, stress, and the demands of her work’.
Dr Youssef put some of the Applicant’s symptoms down to her degenerative condition but also said ‘there appears to have been a significant psychological component to her symptoms’. Although he qualified his opinion by referring to his lack of psychiatric qualifications he said, the Applicant ‘appears to develop physical symptoms when she feels that the pressure at work is too great and she appears to be unable to cope with the workload.’ Later Professor Youssef referred to the likelihood of a cervical radiculopathy as a cause of the pain but even then, did not qualify his earlier expressed opinion about the likely causes so far as the psychological component was concerned. As the Respondent correctly identified in its written submissions ‘the majority of the available medical evidence ... attributed the Applicant’s symptoms to stress’. None of the expert medical evidence, even that of Professor Youssef, supports a conclusion that the pre-existing degenerative and constitutional condition caused the Applicant to experience the significant level of pain she was experiencing whether or not she was a work.
The medical evidence leads to the conclusion that the Applicant’s ailment that involved her acute pain was not solely the consequence of either her degenerative condition or an aggravation of it. I reject the suggestion that it was.
‘CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY THE EMPLOYEE’S EMPLOYMENT’
The next question is whether the ailment, in this case the neck, shoulder, arm and hand pain were contributed to, to a significant degree, by the Applicant’s employment. The words ‘significant degree’ are defined in s.5B(3) of the Act to mean a degree that is ‘substantially more than material’ which ‘must necessarily be substantially greater than one which is trivial (see Comcare v Power (2015) 238 FCR 187 at [78]).
Section 5B(2) of the Act refers to the various things that a decision maker may take into account in determining whether employment is a contributor to a significant degree which include the duration of the employment, the nature of the employment and the particular tasks involved in it, the predisposition of the employee to the ailment or aggravation, the activities of the employment that are not related to the employment and other matters affecting the employee’s health.
There is no doubt that the Applicant’s pre-existing congenital and degenerative conditions were not contributed to a significant degree by her employment. Definitionally, that conclusion is inescapable, and it is also inescapable from the evidence of the expert medical practitioners. The issue is whether that ailment was the ailment the cause of the Applicant’s neck, hand, shoulder and arm pain in late 2019. In that regard it is instructive that Professor Yousef’s report of 29 October 2020 observed that ‘It is likely that some of her symptoms were due to the underlying degenerative disease, however as previously in 1996, there appears to have been a significant psychological component to her symptoms’. That observation carried with it that only ‘some’ of the symptoms were the result of the Applicant’s degenerative condition but that the ‘psychological component’ to her symptoms was ‘significant’. That psychological component appeared to Professor Yousef to be when ‘the pressure at work is too great and she appears to be unable to cope with the workload’. Those observations by Dr Yousef accepted the foundational premise that the Applicant’s work was a significant contributor to her ailment. Professor Yousef’s later report identified that in February 2020 the Applicant’s condition was consistent with cervical radiculopathy. The later report nonetheless repeated the observations about the need to consider a ‘psychological component’ which Professor Yousef had referred to in his first report.
It is important to emphasise that Professor Youssef expressed, understandably, various opinions about the cause of the pain. He said, for example, after reviewing Dr Greenhalgh’s notes of her consultation of 10 February 2020 that ‘the most likely cause of her pain was a cervical radiculopathy’ even though this was not referred to in his earlier report. In relation to that he explained that the pain at the side of the neck was due to ‘the underlying degenerative condition’. He also said that ‘severe symptoms’ were seen in people with ‘severe cervical degenerative disease’ who ‘not uncommonly…can get flares’. But in none of his evidence did he qualify the proposition that ‘it’s very hard to know what caused this sudden acute flare of pain’ and stood by his opinion that ‘[the Applicant’s] overall trajectory cannot be explained simply on the basis of degenerative disease dating back to 1993 and that a psychological component to her presentation needs to be considered’. That psychological component was something to which he attached the adjective ‘significant’ in his earlier report.
Associate Professor Thakkar’s opinion was that ‘the extent and severity of the neck degenerative change on her imaging would not, conceivably, be attributed (sic) the nature of her reported work’. That evidence was consistent with that of Professor Youssef who was firm in his opinion that ‘those tasks…[referring to the work that the Applicant undertook]…would not have caused severe acute neck pain that [the Applicant] complained of that actually took [the Applicant] off work so that [they] are unable to work’. That being said, Associate Professor Thakkar left open the possibility that a significant change in the nature and duties related to her work contributed to by stress and pressure requirements, that it may have contributed to potential flare up ultimately leading to her reporting a date of injury as of 4 November 2019. The difficulty is that Associate Professor Thakkar expressed no affirmative conclusion one way or the other whether ‘stress and pressure’ arising from work did in fact contribute to the potential flare up. Nonetheless his evidence pointed in the same direction so far as stress and pressure at work being a contributor to the Applicant’s pain in her neck, shoulders, arms and hands.
Dr Loefler’s evidence is in my view the best evidence I have as to the likely significance of work so far as it contributed to the Applicant’s ailment of neck, shoulder, arm and hand pain. There are a number of reasons why I consider his evidence to be important.
First, Dr Loefler’s evidence was reasonably unequivocal. I say reasonably because in one of his reports he left open the prospect that the cause of the Applicant’s condition was contributed to by ‘cervical spondylosis which can certainly be exacerbated by posture’ which was a little different from his first and third reports and his evidence in the Tribunal. His evidence in the Tribunal identified ‘tension, stress, and the demands of her work’ or ‘excessive demands’ or ‘stress caused by a heavy workload and by ever changing deadlines’ or ‘stress and overwork’ as being the significant contributors to the Applicant’s condition. The Applicant’s onset of pain in her neck, shoulders, arms and hands started at about the time the changes to her work meant she had increased demands upon her.
Second, Dr Loefler’s evidence when tested was emphatic that ‘the relationship between stress, the relationship between tightness in muscles, posture, overwork or demands at work, I should say, is actually well known in medicine, this is nothing new which I have invented’ and that ‘[w]e see these quite regularly. This is not actually like an isolated situation’. His evidence was direct and to the point. He was forthright and confident in his opinion and his evidence was logical and persuasive for those reasons.
Third, although different to that of Professor Youssef, he ‘explained’ that aspect of Professor Youssef’s evidence which Dr Loefler did not appear to be confident about; namely, the relationship between the Applicant’s development of ‘physical symptoms when she feels that the pressure at work is too great, and when she appears to be unable to cope with the workload’. It is not apparent that Dr Loefler had the advantage that Professor Youssef had of knowing the Applicant’s history of similar pain in 1996 when he expressed his opinion, but it fairly nearly explains what Professor Youssef was not able to confidently explain. Whether or not Dr Loefler knew about the happenings in 1996 is a little beside the point but as I have said it tended to explain the correlation between the instances of pain and stress that Professor Youssef identified and referred to as ‘significant’ but could not explain.
Fourthly, although the existence of a medical diagnosis is a reason to tread with a little caution, it does not preclude a finding that the factors affecting the Applicant at work were a significant contributor to her ailment. In this regard, although Dr Loefler did not have the detail of what happened in the workplace in his report and relied upon what he was told, I have found that there were changes to the Applicant’s workplace that were consistent with what she said and were, for the Applicant, a source of great stress and tension. It needs to be remembered that Professor Yousef identified work related stress as being the significant factor affecting the Applicant’s pain and not other things that might cause stress. In any event, I have accepted the Applicant’s evidence about what was predominantly the cause of her stress in November 2019and after, namely the significant changes in her work and workload. It is important that the onset of the Applicant’s neck, shoulder, arm and hand pain was in fact at about the time of significant changes to her work and workplace that I have identified, which were the source of stress for her. Her first symptoms emerged in early November 2019 when she first identified her symptoms of discomfort and pain.
It was suggested that the significant contribution posed by the Applicant’s work to which I have referred were diminished by other stresses in the Applicant’s life at the time. These were her ankle and later knee condition (which was subjected to a medical procedure in January 2020), the legal process which accompanied her ankle injury that continued after April 2019 until the end of the year and issues concerning her parking permit. In this regard, Dr Loefler’s evidence did not refer to any other stress as being the origins of the Applicant’s pain but rather expressly referred to that which was caused by work. The correlation identified by Professor Youssef was between work stress and pain. Dr Youssef did not identify those other things as a source of stress for the Applicant in his rather comprehensive assessment of things.
By late 2019 the Applicant had been through her ankle and knee issues since about April and there were no signs of any pain until late October and early November when her work-related issues emerged. They do not appear to have been so significant for the Applicant as the things happening at work in the months when her pain took over. The contemporary records, in particular, the Workplace Assessment Report and her claim which were both prepared at the time and closer to the time that things were happening, confirm that what was going on at work was more than anything else, the source of the Applicant’s stress. So far as her knee was concerned, it was a stress because the Applicant needed to get to work and to do so needed a parking permit, but otherwise it does not seem to have rated much of a mention at the time.
Fifthly, although Professor Yousef noted that many things might cause pain the correlation in time between the onset of the Applicant’s pain condition and the onset of the changed and high stress work environment, taken together with Dr Loefler’s opinion about the origins of the pain, strongly suggests that pain that the Applicant had its origins in the workplace.
Finally, it was suggested that because Professor Yousef had available to him and recorded the detail of the Applicant’s work and her particular tasks and had available much of the Applicant’s history, I should prefer his evidence. Apart from carrying with it the apparent significance of the Applicant’s pain and work related stress it is not obvious how that recorded history placed Professor Yousef in a position of advantage over Dr Loefler and Associate Professor Thakkar in so far as understanding the origins of the Applicant’s pain. All of them were aware of the Applicant’s degenerative condition and the changes that led to her pressure at work such as her increased workload and the changes that affected her. Professor Yousef’s focus appeared directed to the identification of a physiological cause. This was apparent from his addition of cervical radiculopathy as a potential cause of the pain in his second report, but even then, it appears it was not as significant as the prospect of workplace stressors he had referred to as potentially relevant earlier. Professor Yousef did express the opinion that the Applicant’s pain was consistent with a cervical radiculopathy, but did not express any opinion about whether it was inconsistent with having its origins in ‘stress caused by a heavy workload and by ever changing deadlines’.
Although some of the medical practitioners expressed other or different views at various times about the contributors to the Applicant’s neck, shoulder, arm and hand pain, in the end, I am persuaded on balance, that the Applicant’s employment was a significant contributor to her neck, shoulder, arm and hand pain. This is because of the opinion of Dr Loefler which to an extent appears to have been confirmed by Professor Youssef and Associate Professor Thakkar. Those opinions taken together with the evidence concerning the changes to the Applicant’s workplace in early November 2019 which I have found to have been a source of significant work related stress for the Applicant, persuade me that on balance, the Applicant’s work was a significant contributor to her pain related condition. It was substantially more than material in its contribution to her pain. Although the Applicant had a degenerative condition and may have suffered a cervical radiculopathy, those things if they were at all a source of the Applicant’s pain, were not a significant contributor to the Applicant’s neck, shoulder, arm and hand pain. It follows that the Applicant suffered an injury within the meaning of the Act for which she was entitled to be compensated.
I find that the Applicant’s neck, shoulder, arm and hand pain was contributed to, to a significant degree, by her employment. It follows that the Applicant had a disease within the meaning of s.4 of the Act, an ‘injury’ within the meaning of s.5A of the Act and is entitled to compensation under s.14 of the Act.
DECISION
I set aside the decision under review and in its place substitute a decision that the Applicant suffered an injury for which compensation is payable within the meaning of s.14 of the Act in relation to her neck, shoulder, arm and hand pain suffered by her after 4 November 2019.
I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member.
.................................SGD.......................................
Associate
Dated: 25 August 2022
Dates of hearing: 25 May, 26 and 27 October 2021 Date final submissions received: 18 June 2022 Applicant: In person Solicitor Advocate for the Respondent: Ms A Bortone, Sparke Helmore Lawyers Solicitors for the Respondent: Mr A Ghaleb, McInnes Wilson Lawyers
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