WQLR and Comcare (Compensation)

WQLR and Comcare (Compensation) [2024] AATA 337 (22 February 2024)
Division:GENERAL DIVISION
File Number(s): 2022/2702; 2023/0058; 2023/0611
Re:WQLR
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:22 February 2024
Place:Sydney

In application 2022/2702, the reviewable decision dated 21 February 2022 is affirmed.
In application 2023/0058, the reviewable decision dated 28 September 2022 is affirmed.
In application 2023/0611, the reviewable decision dated 15 December 2022 is affirmed.
.........................[sgd]...............................................
Senior Member A Poljak
Catchwords
WORKERS COMPENSATION – clerical assistant – Services Australia – compensation for bilateral 1st carpometacarpal injections – compensation for a rheumatology consultation – compensation for MRI of both hands and wrists – Denial of liability – Whether injury is work related – Conflicting medical evidence – Decision affirmed
Legislation
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
Senior Member A Poljak
22 February 2024

The applicant commenced employment with the Department of Social Security (now Services Australia) (the Agency), as a clerical assistant (CA1) on 10 December 1970, where she remained employed until her compulsory retirement on the ground of invalidity in May 1989. The applicant was generally engaged in clerical duties during her employment.
On 10 September 1985, the applicant claimed compensation for ‘sore wrist and strained 4 finger and index finger of right hand’ which she claimed to have first noticed on 27 May 1985 from answering phones and pushing buttons on the switchboard. By determination dated 6 January 1986, liability to pay the Applicant compensation for ‘right hand injury’ (the accepted 1985 injury) was accepted under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act).
On 14 March 1986, the applicant claimed for ‘left arm and wrist injury’ which she said she sustained on 3 March 1986 as a result of being ‘at work while performing clerical duties’. By determination dated 12 June 1986, liability to pay compensation to the applicant for ‘overuse syndrome – painful left arm’ was accepted under the 1971 Act (the accepted 1986 injury).
The applicant has an accepted claim for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for ‘psychogenic pain disorder’, deemed to have been sustained on 23 August 1988 (the accepted condition).
On 23 December 1988, Comcare determined that on and from 23 September 1987, it was no longer liable to pay the applicant compensation in respect of the accepted 1985 and 1986 injuries. By reviewable decision dated 7 August 1989, the determinations dated 23 December 1988 were affirmed.
On 18 November 1991, the Administrative Appeals Tribunal set aside the reviewable decision dated 7 August 1989, and found that the applicant ‘has a psychogenic pain disorder, a passive dependent personality – and chronic depressive illness characterised by hypochondriasis’ and was satisfied that those conditions were related to her employment and caused ‘her to be partially incapacitated and to a measurable extent, sufficient at this time to severely impair her earning capacity’. The Tribunal did not reinstate liability for either the accepted 1985 injury or the accepted 1986 injury.
The applicant has claimed that her current condition and symptoms are related to the accepted 1985 and 1986 injuries. She claims that she had RSI in the 1980s, which morphed into trigger finger, which morphed into osteoarthritis. Comcare submits that there is no medical evidence to support the applicant’s claims.
In these proceedings, the applicant seeks review of the following decisions:
AAT application 2022/2702
The applicant seeks review of a reviewable decision dated 21 February 2022, that affirmed a determination dated 25 October 2021, which denied liability to pay compensation for bilateral 1st carpometacarpal (CMC) injections under section 16 of the SRC Act in respect of the accepted condition (the claimed injections).
AAT application 2023/0058
The applicant seeks review of a reviewable decision dated 28 September 2022, that affirmed a determination dated 10 August 2022, which denied liability to pay compensation for MRI of both hands and wrists under section 16 of the SRC Act in respect of the accepted condition (the claimed MRI).
AAT application 2023/0611
The applicant seeks review of a reviewable decision dated 15 December 2022, that affirmed a determination dated 17 November 2022, which denied liability to pay compensation for a rheumatology consultation under section 16 of the SRC Act in respect of the accepted condition (the claimed rheumatology consultation).
Issues
The issue in all three applications before the Tribunal is whether the applicant is entitled to the claimed injections and/or the claimed MRI and/or the claimed rheumatology consultation (together, the claimed treatments) under section 16 of the SRC Act. This involves consideration of whether the claimed treatments are:
(a) being obtained in relation to the accepted condition; and
(b) reasonable treatments for the applicant to obtain in the circumstances.
Relevant Aspects of the Medical Evidence and Consideration
An X-ray report of wrists and thumbs dated 20 April 2005, revealed ‘very mild osteoarthritis of left carpo – 1st metacarpal joint’.
Dr Ginges, treating rheumatologist, reported on 5 September 2017, that the applicant has increasing pain in the distal interphalangeal (DIP) joints and that her presentation was consistent with osteoarthritis. Dr Ginges recorded that she found tender Heberden’s nodes in multiple fingers.
On 27 November 2017, Dr Raj Binod Anand, rheumatologist, reported that an examination of the applicant revealed changes due to osteoarthritis over the DIP and proximal interphalangeal joints (PIP) of her hands.
X-rays of both hands dated 30 May 2020, reportedly revealed:
Report:
On the right-side, the radiocarpal joint and the carpal bones are normal. Mild to moderate degenerative changes at the 1st CMC joint. The other CMC, MCP, PIP and DIP joints are normal.
On the Left-side, the radiocarpal joint is normal. The intercarpal joints, the CMC, MCP, PIP and DIP joints are normal.
Comment:
Mild to moderate degenerative changes in the left 1st CMC joint.
All the other joints in both wrists and hands are unremarkable
On 8 July 2020, the applicant complained to Dr Nair, spinal surgeon, of left upper extremity radicular symptoms. Dr Nair reported that she had pain in the base of her left thumb and medical imaging revealed pathoanatomy of the first metacarpal joint. Dr Nair recommended a corticosteroid injection and referred the applicant for “imaging Guided Biopsy/Injection or US guided left 1st cmc joint”. Dr Nair reported on 20 July 2020 that the injection was for the treatment of osteoarthritis affecting the 1st CMC joint. Liability has not been accepted for any such condition.
It appears that despite Dr Nair’s report, liability was accepted to pay compensation under section 16 of the SRC Act in respect of a corticosteroid injection on 7 August 2020 in relation to the accepted condition and on 14 August 2020 the applicant underwent a 1st CMC corticosteroid injection.
In a report dated 13 August 2021, Dr Nair again recommended ‘repeat CMC blocks’ (the claimed injections) for the applicant due to her being ‘significantly troubled by upper limb extremity pain’ and pain in the base of her thumbs.
On 9 September 2021, Dr Nair reported that the claimed injections were required for the condition of ‘first CMC osteoarthritis’ caused by the applicant’s repetitive use of the upper extremities and specifically the nature and conditions of her employment with the Agency. Dr Nair opined that it was “highly improbable” that the applicant would have suffered from 1st CMC joint osteoarthritis irrespective of her employment with the Agency but gave no explanation of how he had arrived at that view. In a further report dated 3 November 2021, Dr Nair stated that the applicant continued to have ‘debilitating axial and upper extremity symptoms’, and ‘the most intrusive symptoms are in the base of the upper extremities and left thumb’.
On 21 October 2021, Dr Gill completed an imaging request to Dr Lam, for an ultrasound of the right wrist, plus or minus steroid. He said, ‘Request for steroid to left thumb. Has O/A [osteoarthritis].’
On 29 April 2022, Dr Copic, general practitioner, wrote a letter certifying that the applicant was ‘suffering from osteoarthritis – degenerative changes – back, neck, knees and hands’.
Dr Gill, general practitioner, wrote a letter in relation to the claimed injections on 22 August 2022, in which he stated ‘over 4 decades of multiple work related accidents has brought on her arthritis OF HER HANDS…’.
An X-ray of the left hand and wrist on 23 June 2023 reportedly showed ‘the median nerve is enlarged suggesting median neuropathy. There is fluid in the sheath of the extensor tendon in compartment 1. There is a small ganglion cyst measuring 5 mm maximally. Degenerative changes are seen in the first carpometacarpal joint.’
An X-ray of the right hand and wrist on 30 June 2023 reportedly revealed ‘enlarged median nerve with increased flattening ratio is suggestive of carpal tunnel syndrome. Ultrasound guided cortisone injection is recommended. Degenerative changes are seen in the radiocarpal joint.’
In letter dated 6 July 2022, Dr Gill indicated that he considered the claimed MRI was necessary ‘so that approval can be given to her steroid injections’ such that the claimed MRI is sought for the purposes of treatment for the applicant’s osteoarthritis.
Dr Gorman, general and pain management physician and medical oncologist examined the applicant on 7 November 2022 and provided a report dated 11 November 2022. Dr Gorman concluded that the applicant suffered from carpometacarpal osteoarthritis, ‘the left much worse than the right’, He opined:
This is an age-related change and I do not believe it can be related back to any work for Services Australia.
I particularly note that she is right-handed and many of the “overuse” claims were made with regard to her right rather than left hand. However, the left CMC arthritis is the most severe.
Dr Gorman stated, ‘there is no doubt that her main complaint today is with regard to the left 1^st carpometacarpal joint and its osteoarthritis. This is a non-work-related condition. Her accepted “Psychogenic pain” however remains’. He accepted that corticosteroid injections were reasonable treatment for the condition but was not treatment for the accepted condition of ‘Psychogenic Pain Disorder’. He Opined:
These are age-related degenerative changes. I do not believe that they are related at all to the conditions at work in Services Australia. I say this because she is righthanded and most likely did most of the repetitive work with her right hand. The majority of the problems in the upper limbs during her employment were with the right hand, although the left hand was sometimes involved.
I believe that this is a constitutional degenerative change and unrelated to work.
Dr Gorman gave oral evidence at hearing, he confirmed that his finding that the applicant had carpometacarpal osteoarthritis, the left being much worse the right, was informed by his own examination of the applicant’s hands, and thumbs in particular. He stated that this finding on examination was consistent with the report of Dr Wong dated 20 April 2005, which stated under the heading, ‘Both Wrists and Thumbs’, ‘very mild osteoarthritis of left, first carpometacarpal joint’.
Dr Gorman further explained that his finding of osteoarthritis in both thumbs, despite not making any findings of abnormality in relation to the right, was because the applicant was wearing the firm fiberglass splints on both wrists and thumbs, so I think that, as would be expected in a degenerative process, that both sides were affected.
In regard to the development of osteoarthritis, Dr Gorman explained that age‑related degeneration was the most common cause and is common in the community, and an injury to a joint, such as a fracture near a joint, can accelerate osteoarthritis. He said, repetitive movements of the joint without a traumatic injury are unlikely to lead to the development of osteoarthritis and that there’s plenty of evidence to show that osteoarthritis in this particular joint or hand, osteoarthritis in general, is not related to the repetitive‑type movements.
Dr Gorman reiterated his evidence that the chief reason for his opinion that the applicant’s carpometacarpal osteoarthritis is unrelated to her employment, was the fact that she’s right‑handed and many of her overuse claims were made with reference to her right rather than the left hand, whereas the arthritis is the most severe in her left thumb.
A report of Dr Tong, rheumatologist, dated 6 April 2017, was put to Dr Gorman for comment. Particularly the included summary of injuries and claims made by the applicant on 21 May 1986 and 25 May 1988. Both instances involved the left thumb. However, in a case summary in relation to a particular claim she made in respect of a different injury, there’s reference to an injury on 23 May 1986, so two days after the injury recorded by Dr Tong, it said:
Bruised left hand and left wrist, probably aggravated RSI of the left hand. A fall on the wrist made it worse. ‘Whilst walking up steps I tripped up steps, left hand on flat part and bruised bone in left wrist and landed also on left knee under the knee bone.
Additionally, Dr Gorman was taken to a certificate from Dr Anne Stacey, general practitioner, dated 26 May 1986, in respect of repetitive strain injury of the applicant’s upper limbs. Despite the certificate being three to five days after the claimed injury as described by Dr Tong, there is no mention of a fall or injury to her wrist. A further certificate from Dr Stacey dated 27 May 1986, stated ‘attended yesterday for treatment of her arm problems’. Then, there are further certificates from Dr Stacey and Dr Honeyman, general practitioner, going up to 1 October 1986, with each of those certificates referring either to overuse syndrome, arm problems, or RSI. A report dated 30 May 1986, by Dr Ian Meakin, orthopaedic surgeon, contained no reference to any injury to the left thumb, and stated:
On examination, there is no evidence of swelling, heat, crepitus, or redness in any areas as described as being painful. The only positive subjective finding is some discomfort on demonstration of terminal range adduction of both shoulders. There are no other symptoms to find.
As for the claimed incident/injury in 1988, Dr Gorman was advised of a report of Dr John Bannister, orthopaedic surgeon, dated 2 June 1988, where no mention is made of the left thumb. Further, the applicant wrote to Comcare on 25 July 1988 in which she said:
After attending physio on that day, I asked Susan Oldman about the injury I had on 25 May 1988 and subsequent treatment. On 26 May 1988 at 10 am, she treated my cervical and thoracic spine that day to ease pain in the left wrist but said that’s the same treatment I was having recently, and so she couldn’t really offer any more evidence than that.
Dr Gorman opined that this further material would not lead him to conclude that the osteoarthritis in the applicant’s left thumb has been caused or contributed to by injury arising out of the course of her employment. He said, if an injury to the thumb was to be the thing that accelerated the osteoarthritis in that thumb, it would have been a substantial injury and would have been the focus of her complaints. An injury would generally involve tendon disruption and a great – a significant injury to the thumb to enable the joint to be so affected as to accelerate osteoarthritis.
Dr Gorman stated that he did not consider an MRI scan of both hands and wrists to be considered reasonable treatment for the applicant’s accepted condition. He further explained:
An MRI of the hands and wrists may be done after an injury, a specific injury, but will only be of use if there are specific signs that direct one towards an abnormality, a specific injury that might direct one towards an abnormality, an injury that might be repaired surgically, or symptoms that you can’t explain with a standard X‑ray. So in other words, if a person such as [the applicant] presented with pain at the base of the thumb and tenderness and an X‑ray showing osteoarthritis, there is absolutely no indication …. because the diagnosis is crystal clear on the X‑ray.
The evidence of Dr Gorman is contradictory to that of Dr Nair, being the two specialists who deal with the matter regarding the relationship of osteoarthritis to the applicant’s employment. Having considered the evidence, I prefer that of Dr Gorman for the following reasons.
I first note that the applicant’s employment ended over 23 years ago. Dr Nair has stated his view that, ‘The applicant’s osteoarthritis was caused by repetitive use of upper extremities, specifically the nature and the conditions of her duties with Services Australia.’ However, in all his reports, he has not provided any detail or description of what the applicant’s duties involved. Nor is there any evidence that he had made himself aware of her duties. Additionally, there is no explanation as to why he found the applicant’s osteoarthritis was caused by repetitive use of the upper limbs.
Dr Gorman on the other hand, gave succinct evidence that osteoarthritis is caused by a significant trauma to the affected bony structures or joints, and not simply by repetitive use. He explained that the bulk of the applicant’s claimed overuse injuries related to her right arm, as you would expect, given that she’s right‑handed, whereas her osteoarthritis is worst in the left thumb. I am not satisfied on the available evidence that the applicant suffered any specific injury to the left thumb sufficient to have contributed to the development of osteoarthritis in that digit.
Decision
The available medical evidence shows that the applicant has osteoarthritis in her wrists and hands.
The applicant does not have an accepted claim for osteoarthritis and/or RSI. I am not satisfied on the available evidence that the applicant’s osteoarthritis and/or RSI was significantly contributed to, by her employment, or resulted from any injury suffered by the applicant during her employment with the Agency.
In application 2022/2702, Comcare is not liable to pay compensation to the applicant under section 16 of the SRC Act in respect of the claimed injections, as the treatment is sought in relation to osteoarthritis and not the accepted condition. The reviewable decision dated 21 February 2022 is affirmed.
In application 2023/0058, Comcare is not liable to pay compensation to the applicant under section 16 of the SRC Act in respect of the claimed MRI, as the treatment is not sought in relation to the accepted condition. The reviewable decision dated 28 September 2022 is affirmed.
In application 2023/0611, Comcare is not liable to pay compensation to the applicant under section 16 of the SRC Act in respect of the claimed rheumatology consultation, as the treatment is sought in relation to osteoarthritis in the applicant’s wrists and hands, not in relation to the accepted condition. The reviewable decision dated 15 December 2022 is affirmed.

43. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................
Associate
Dated: 22 February 2024

Date of hearing:

13 and 14 November 2023

Applicant:

Counsel for the Respondent:

Solicitor for the Respondent

Self-represented

Mr B Kelly, 4 Wentworth Chambers

Ms S Miller, Sparke Helmore Lawyers

[2024] AATA 337

22 February 2024

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