Zaveczky and Comcare (Compensation) - [2020] AATA 4960

Zaveczky and Comcare (Compensation) [2020] AATA 4960 (9 December 2020)
Division:GENERAL DIVISION
File Number(s): 2018/1166, 2018/6132, 2020/5994, 2020/5997, 2020/5998, 2020/5999
Re:Nicole Zaveczky
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:9 December 2020
Place:Sydney

The decisions under review are affirmed.
................................[sgd]........................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – four claims in relation to conditions affecting the Applicant’s right and left shoulder, and right elbow – bilateral rotator cuff disorder – whether the Applicant suffered an injury – whether the Applicant’s employment contributed to, to a significant degree, or contributed to the aggravation of the Applicant’s condition – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 19, 29, 39, 62
CASES
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lees and Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May [2016] 257 CLR 468
Portors and Comcare (Compensation) [2017] AATA 2166
Portors v Comcare [2018] FCA 914
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
Dr I Alexander, Senior Member
9 December 2020
BACKGROUND

On 21 February 2007, Ms Zaveczky commenced her employment with the Department of Human Services[1] (DHS) as an APS4 Customer Service Officer.
[1] Currently renamed as Services Australia.
In 2013, ultrasound imaging revealed pathological change in her right[2] and left[3] shoulder.
[2] Report 4 August 2013 – Subscapularis Supraspinatus Infraspinatus Tendons - normal. No gross structural abnormality is identified apart from very small foci of irregular thickening of the bursa. This could reflect mild bursitis.
[3] Report 6 September 2013 - Findings are consistent with supraspinatus tendinosis and subacromial/subdeltoid bursitis.
On 4 December 2013, Ms Zaveczky lodged a claim[4] for compensation in respect of ‘injury’ to both upper limbs. The claimed date of injury was 7 March 2013.
[4] Claim number 1202473/01.
On 20 February 2014, Dr Hall, occupational physician, submitted a report to Comcare in which he stated that ‘On the balance of probabilities the conditions currently suffered are related to her employment with DHS’.
On 17 March 2014, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare accepted liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’.
On 27 June 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Ultrasound guided injections steroid into bilateral subacromial bursa, on 16 and 30 June 2014’.
On 8 August 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment up to and including 2 September 2014 for ‘Relevant reviews with your treating practitioner; Related prescribed pharmaceuticals; Review with your treating Rheumatologist’.
On 10 September 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment up to and including 2 October 2014 for ‘Related reviews with your treating practitioner; Relevant prescribed pharmaceuticals; Review with your treating Rheumatologist, if required’.
On 1 October 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Subacromial bursae local steroid and anaesthetic injection… Right shoulder… Left shoulder…’.
On 8 October 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Initial review… Pain and Rehabilitation Specialist’.
On 16 October 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Orthopaedic surgeon consultation… Xray - both shoulders’.
On 31 October 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Right arthroscopic subacromial decompression’ and ‘Rotator cuff debridement… to be undertaken at Baringa Private Hospital’.
On 25 November 2014, Ms Zaveczky underwent ‘arthroscopic subacromial decompression and mini open rotator cuff debridement’.
On 24 February 2015, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Related reviews with your treating practitioner; Relevant prescribed pharmaceuticals; Related reviews with your orthopaedic surgeon; and 12 physiotherapy consultations’.
On 31 March 2015, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Related reviews with your treating practitioner; Relevant prescribed pharmaceuticals; Related reviews with your orthopaedic surgeon’ as well as some specific medical aids. Also, pursuant to section 29 of the SRC Act, Comcare accepted compensation payment for ‘Household services for 3 hours per week, up to and including 30 June 2015’.
On 3 July 2015, in a consent decision the Administrative Appeal Tribunal decided that pursuant to section 16 of the SRC Act, Comcare was to pay for the cost of ‘manipulation under anaesthetic and release of frozen shoulder (right)’. In a determination dated 13 July 2015, Comcare accepted the cost of the surgery.
On 10 July 2015, pursuant to section 29 of the SRC Act, Comcare accepted compensation payment for ‘Household services for 3 hours per week, up to and including 30 September 2015’.
On 4 August 2015, Ms Zaveczky underwent manipulation under anaesthetic to release her right frozen shoulder.
On 7 August 2015, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘12 physiotherapy sessions… to 31 October 2015’.
On 24 September 2015, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Related consultations with your treating practitioner; Related pharmaceuticals; Consultation and report with Orthopaedic Surgeon’.
On 28 October 2015, Comcare determined that compensation is payable for ‘bursitis (left)’ pursuant to section 14 of the SRC Act.
On 24 November 2015, Ms Zaveczky’s general practitioner (GP) declared her ‘fit to preinjury duties’ with minimal mouse work.
On 17 August 2017, Ms Zaveczky lodged a new claim[5] for ‘left shoulder bursitis, tendinosis and rotator cuff tear’. She claimed that in March 2011, she began to experience ‘pain’ and ‘swelling in my left arm and shoulder’ because she had changed her work practice to ‘mousing’ with her left hand.
[5] Case number 1202473/03.
On 18 October 2017, an authorised delegate determined that Comcare was not liable to pay compensation pursuant to section 14 of the SRC Act in respect of ‘partial-thickness supraspinatus tear of the left shoulder with bursal bunching on abduction’.[6]
[6] On 3 March 2017, ultrasound of the left shoulder found a small 3.5 mm partial thickness supraspinatus tear and mild bursal thickening with bunching on abduction.
In a reviewable decision dated 5 February 2018, an authorised delegate affirmed the determination dated 18 October 2017 (Application 2018/1166).
In a letter dated 28 August 2018, a case manager with Allianz Australia Insurance Limited (AAIL) informed Ms Zaveczky that her request in February 2018 ‘to reactivate her claim[7]’ will be denied because she ‘does not presently have an entitlement to compensation’. The case manager noted that Ms Zaveczky had last claimed incapacity and medical treatment on this claim in November 2015, that the last expense was a rehabilitation cost in March 2016, and that until recently, she did not seek compensation beyond this date.
[7] Claim number 1202473/01.
In a reviewable decision dated 22 October 2018, an authorised delegate affirmed the decision of 28 September 2018 which determined that as at 15 March 2016, Ms Zaveczky ‘has no present entitlement to compensation under the SRC Act’ in respect of sections 16, 19, 29 and 39 of the SRC Act (Application 2018/6132).
Following a reconsideration of its own motion in respect of a determination made on 28 October 2015 which accepted liability for ‘bursitis (left)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘bursitis (left)’ (Application 2020/5994).
Following a reconsideration of its own motion in respect of a determination made on 17 March 2014 which accepted liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘subacromial/subdeltoid bursitis (right)’ and ‘supraspinatus (muscle) (tendon) strain (left)’. However, liability with respect to ‘aggravation of lateral epicondylitis (right)’ should remain unaffected (Application 2020/5997).
Following a reconsideration of its own motion in respect of a determination made on 31 October 2014 which accepted liability for ‘right arthroscopic subacromial decompression’ and ‘rotator cuff debridement (and possible repair)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘right arthroscopic subacromial decompression’ and ‘rotator cuff debridement (and possible repair)’ (Application 2020/5998).
Following a reconsideration of its own motion in respect of a determination made on 13 July 2015 which accepted liability for ‘manipulation under anaesthetic and release of contracture of frozen shoulder (right)’, in a reviewable decision dated 24 September 2020 an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘manipulation under anaesthetic and release of contracture of frozen shoulder (right)’ (Application 2020/5999).
In a letter dated 2 October 2020, AAIL informed Ms Zaveczky that on 24 September 2020, following a review of her claim (1202473/1), all ‘conditions/determinations’ had been revoked and, therefore, ‘there is no liability on your claim’. As a result, ‘an overpayment of $73,928.85 has occurred’ which is to be refunded to Comcare.
In these proceedings Ms Zaveczky, who was represented by counsel, seeks review of the six reviewable decisions.
In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, the parties attended the hearing by videoconference.
RELEVANT STATUTORY PROVISIONS
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an ‘injury suffered by an employee if the injury results in death, incapacity for work, or impairment’.
‘Injury’ is defined in subsection 5A(1) of the SRC Act to mean:
(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. [emphasis added]
Subsection 5A(2) of the SRC Act provides:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
‘Disease’ is defined in section 5B of the SRC Act:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
‘Ailment’ is defined in subsection 4(1) of the SRC Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 14 of the SRC Act creates a liability in Comcare in respect of injuries suffered by employees which result in ‘death, incapacity for work, or impairment’. However, the liability created by section 14 ‘is qualified... That is, it is a liability limited in its extent by other provisions of Pt II of the Act’.[8]
[8] Lees and Comcare [1999] FCA 753, [27].
Subsection 16(1) of the SRC Act provides that:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury…
Subsection 19(1) of the SRC Act provides that:
Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
Section 29 provides for ‘Compensation for household services and attendant care services obtained as a result of a non‑catastrophic injury’.
Section 62 of the SRC Act provides that:
Reconsideration of determinations
(1)       A determining authority may, on its own motion:
(a)       reconsider a determination made by it; or
(b)       cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2)       A request to a determining authority to reconsider a determination made by it may be made by:
(a)       the claimant; or
(b)       if the determination affects the Commonwealth—the Commonwealth; or
(c)       if the determination affects a Commonwealth authority—that Commonwealth authority…………………
(5)       Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit. [emphasis added]
ISSUES
In June 2013, Ms Zaveczky presented to her GP with bilateral shoulder pain. Subsequent ultrasound imaging confirmed pathological change[9] in the ‘rotator cuff’ in her right and left shoulder. Over time, her symptoms increased, conservative treatment was unsuccessful and surgical intervention was required. Unfortunately, postoperative complications also led to further increased symptoms and subsequent impairment.
[9] Supra 2 and 3.
Ms Zaveczky contends that her employment, as a Centrelink Customer Service Officer, contributed to her right and left shoulder disorder, to a significant degree or alternatively contributed to the ‘aggravation’ of her bilateral shoulder disorder to a significant degree.
The Respondent contends that Ms Zaveczky’s employment made no contribution or only insignificant contribution to her right and left shoulder disorder or the aggravation of her bilateral shoulder disorder.
Therefore, the definitive issue in this matter is whether Ms Zaveczky ever suffered an ‘injury’ for the purposes of subsection 5A(1) or section 5B of the SRC Act.
MS ZAVECZKY’S EVIDENCE
In an undated statement, which Ms Zaveczky attached to her new claim lodged on 17 August 2017, she stated, inter alia, as follows:
In 2009 I began to experience pain and swelling to my right arm and shoulder. Suitable duties at work and conservative medical treatment of this injury followed. I went on maternity leave in March 2010, returning in February 2011. On my return, my aforementioned injury to my right arm/shoulder flared up. To minimise the extent of this injury, I changed my work practice to enable the mousing and the majority of the keying be done with my left arm/hand
In March 2011, I began to experience pain and swelling to my left arm and shoulder also. I continued with my self-funded medical treatment and participated in alternative duties in conjunction with my normal duties whilst at work.
In October 2011, I commenced maternity leave with my second child, returning to work in October 2012. On returning to work, the pain and swelling in my shoulders flared up again, with my right hand side being worse than my left.
In January 2013, I once again sought medical attention as the pain and swelling affecting both of my shoulders and right forearm continued. I continued to seek medical treatment from doctors, specialists, massage therapists and physiotherapists and was diagnosed with bilateral shoulder bursitis and tendinitis. [emphasis added]
In her evidence in chief at the hearing, Ms Zaveczky told the Tribunal that she was diagnosed with fibromyalgia when she was around 16 or 17 years old and described her symptoms as ‘general aches and pains, mostly in my lower limbs, and a little bit of fatigue’ which were managed with paracetamol and ibuprofen.
Ms Zaveczky confirmed that in 2009, while working for DHS, ‘there was a significant change in the computer system that we were using. It went from primarily keyboard and shortcut key-based to primarily mouse-based’ and that she began to experience ‘fatigue and a little pain in her right arm and shoulder’.
When Ms Zaveczky consulted her GP[10] he advised that her symptoms were due to ‘repetitive strain injury’ and that she seek ‘alternative duties and allow the injury to settle and attend physiotherapy’.
[10] 19 March 2009 - Dr Joannou.
Ms Zaveczky explained that she was allowed to perform alternative duties, her workstation was ergonomically assessed and modified, and she was provided with Dragon Naturally Speaking technology.
Ms Zaveczky confirmed that in March 2010, she went on maternity leave and said that her symptoms ‘dissipated’. When she returned to work in February 2011, she was restricted to two days per week for about four weeks and then gradually up to three days per week. She said that after about three to four weeks she noticed some ‘discomfort’ in her right ‘mid-shoulder’. She sought physiotherapy assistance and was allowed to perform some alternative duties at work.
Ms Zaveczky confirmed that in October 2011, she again went on maternity leave and said that her symptoms ‘lessened greatly’. When she returned to work, in October 2012, despite requesting increased hours she was again restricted to three days per week and assigned to a different role, which she described as a ‘data processing role in an attempt to maximise the assistance of Dragon Naturally Speaking’.

Ms Zaveczky explained that her symptoms were still present at work and had begun to have an impact on her ‘personal and outside of work life’. She said that soon after returning to work, her right shoulder ‘flared up’ and because she had to start using her left arm, it ‘flared up as well’.
Ms Zaveczky explained that when she returned to work after her second operation, she was not ‘completely pain free’ and still had reduced movement in her right shoulder and, therefore, had to use her left hand to ‘conduct my employment’. She added that while at home, her left arm was basically pain free but on returning to work, ‘within… a small amount of time, it flared back up again’.
In cross examination, Ms Zaveczky conceded that, in her evidence in chief, she had stated that, from 2009, she was ‘pain free [at home] and on return to work within a small amount of time, [her] complaints would flare up again’ but added that since her ‘adhesive capsulitis release’ surgery for both shoulders she had not been free of pain.
On further questioning, however, she conceded that the pain had also been present in the course of her activities of daily living and when she was caring for her children. When asked about the record of interview in an Early Intervention Assessment and Worksite Assessment report, dated 9 March 2011, in which it is recorded that Ms Zaveczky reported that following the birth of her first child, her forearm symptoms ‘increased with the increased activity required for the care of her daughter’ she agreed this was a reflection of how her symptoms have evolved.
Ms Zaveczky conceded that during her maternity leave, while in Canberra, she suffered enough symptoms to require ‘massage therapy’ and said that ‘Well there were injuries there… and I guess any use of those shoulders and limbs exacerbate and then yes, of course caring for two small children understandably increased my pain’.
She also conceded that she had had symptoms in both shoulders since 2009 whether at work or not at work, but asserted that ‘they became a lot worse’ in 2011. On further questioning she agreed that since 2009 she had suffered pain when undertaking a range of domestic duties and stated that ‘I have had pain and restriction since the onset of the injury’.[11]
[11] ‘Injury’ being the forearm symptoms.
Ms Zaveczky agreed that her work was essentially limited to ‘sedentary office duties’ and that none of her duties had ever involved ‘overhead work’.
When asked why there was no record of any consultations with her GP during 2016 until early 2017 or any physiotherapy attendances until December 2016, Ms Zaveczky confirmed she did not attend another medical practice during that time. She was unable to explain why she did not need to see her GP or physiotherapist during 2016, but rejected the suggestion put to her by counsel that her symptoms were actually ‘not as bad’ from time to time and that during 2016 her symptoms were ‘actually not that bad’.
In response to several questions put by counsel, Ms Zaveczky agreed that, from 2009 and pre-surgery, she had experienced ‘various symptoms’ affecting her arms and shoulders whether at work or elsewhere, and that her ‘symptoms’ were worse with overhead activity. She also agreed that all her overhead activities occurred when she was away from work.
When asked about her condition of fibromyalgia, Ms Zaveczky agreed that she still had not recovered from this condition and described her symptoms as ‘it kind of feels like you do when you have the flu, just a general body ache and feeling lethargic’.
MEDICAL EVIDENCE
Centrelink Incident Reports and Ergonomic Assessments
On 23 March 2009, Ms Zaveczky reported an injury to her right arm which had occurred on 4 March 2009. In the report she stated that she suffered a ‘strained arm’ which affected her ‘right shoulder, neck, elbow and wrist’ and described how it was sustained as Keyboard, Mouse, general equipment used daily’. She also noted that she had one day off as a result of the injury.[12]
[12] DHS leave records indicate that Ms Zaveczky had one day off work on 5 March 2009 for ‘ongoing medical problems, migraine’.
In an Ergonomic Workstation Assessment Report dated 30 March 2009, the Konekt consultant noted that Ms Zaveczky reported she had ‘started to feel pain in her right arm for a few weeks which had been gradually increasing’. Ms Zaveczky also advised that ‘she was also experiencing some right neck and shoulder pain which her physiotherapist had related to increased muscle tension’.
Ms Zaveczky told the consultant that she also suffered from fibromyalgia and her doctor advised that her ‘right lateral epicondylitis’ was most likely sustained from her call centre work.
The consultant recommended significant changes to Ms Zaveczky’s workstation, the provision of special equipment and a graded return to work plan.
In an Early Intervention Assessment and Worksite Assessment Report dated 9 March 2011, the Konekt consultant stated that one of the objectives was ‘to provide recommendation on whether Ms Zaveczky will require ongoing return to work support to manage her forearm symptoms’, and recorded, inter alia, as follows:
Ms Zaveczky reported that she had been diagnosed with left and right lateral epicondylitis and right De Quervains[13]… advised she had not been to her treating doctor regarding her arm symptoms recently…
Ms Zaveczky reported her symptoms commenced in early 2009 with increased forearm and wrist pain… her symptoms did not settle throughout the period from early 2009 to March 2010 when she went on maternity leave… advised that in the 5 weeks leading up to the birth of her daughter her arm symptoms decreased, however the symptoms again increased with the increased activity required for the care of her daughter.
Ms Zaveczky advised her symptoms had been manageable leading up to her return to work however she had noticed that over the previous few days her arms had again swelled up…
Current Symptoms or Reported Issues: Ms Zaveczky reported she experienced pain in both forearms on the lateral side of the elbow and in both wrists on the side of her thumb. She advised that her left thumb was much better with only occasional pain as she had undergone a steroid injection before returning to work. Ms Zaveczky also reported as her symptoms increased, she often felt increased upper arm and shoulder pain… on the day of the assessment Ms Zaveczky had visible swelling in the muscle bulk of her forearms and right wrist…
Ms Zaveczky is currently working 3 days / week… from 8:15 am to 4:15 pm
[emphasis added]
[13] There is no evidence that this diagnosis was confirmed.
In an Ergonomic Workstation Assessment Report dated 24 September 2012, the consultant stated, inter alia, as follows:
Ms Zaveczky reported a history of bilateral tendinitis/RSI of the upper limbs, and neck for approximately the past six years shoulders and neck. Ms Zaveczky advised she experiences constant pain and numbness into the neck area that affects all areas of her life… advised mousing, typing and driving are the main aggravators of her condition… reported on the day of assessment she had returned form 12 months maternity leave… advised prior to maternity leave she was undergoing massage therapy which she found assisted slightly in controlling pain levels.
On 7 March 2013, Ms Zaveczky reported an injury to her right arm which she indicated as having occurred on the same day. In the report, she stated that she suffered a ‘repetitive strain injury to right arm’ which affected the ‘right arm’. She described how it was sustained as ‘injury on going from 2009 – previous EP105 put in at that time. injury occured doing normal on phone work at the time. Currently on phone work causes pain and has been worse in the last two week [sic]’. She also noted that she had no days off as a result of the injury.
In an Initial and Ergonomic Assessment Report dated 15 April 2013, the consultant stated, inter alia, as follows:
Ms Zaveczky reported that in 2009 she first developed pain in her right shoulder, which gradually began to radiate down to her neck & arm. She advised that she ignored these symptoms & kept working, however later sought medical advice& was diagnosed with RSI… Ms Zaveczky advised that she currently experiences pain at the base of her skull. Leading to headaches & generalised stiffness around her neck region. She also reported pain and & inflammation from her shoulder down to her forearm & wrist… Reported pain levels increase with activities including mousing, keyboarding & static postures… that pain levels increase throughout the work day & generally reduce over the weekend.[14]
[14] I note that Ms Zaveczky was working only three days per week.
On 23 October 2013, Ms Zaveczky reported an injury to her ‘right arm and shoulder’ which she indicated as having occurred on 21 October 2013. In the report, she stated that she suffered an ‘aggravation of current RSI and tendonitis injury’ which affected the ‘right arm and shoulder’. She described how it was sustained as ‘unavoidable additional mousing and keying’. She also noted that she had no days off as a result of the injury.
On 31 May 2017, Ms Zaveczky reported an injury to ‘both right and left shoulder’ which she indicated as having occurred on 29 September 2010. In the report, she stated that she suffered ‘repetitive strain from using mouse’. She described how it was sustained as ‘repetitive strain to right shoulder from using the mouse right handed, then when I changed the mouse over to the left hand side, repetitive strain occurred on left shoulder’.
Extracts from medical practice notes
Dr A. Joannou, GP
Surgery consultations from Northside Health recorded by Dr A Joannou, General Practitioner (GP):
·25 May 2007 – recently moved back to Coffs [Harbour] – diagnosed with fibromyalgia by rheumatologist… 10 yrs ago – improved lately… sees chiro and massage therapist… Reason for contact: Fibromyalgia [emphasis added]
·24 July 2007 – stiff neck earlier today… poor sleep lately → burst into tears at work → sent home… Acupuncture
·6 August 2007 – flare up pain this am… Acupuncture
·24 October 2007 – intermittent numbness LHS face and L [left] arm – similar episode 2/12 ago… Imaging requested: CT – Brain – 3/7 numbness LHS face, L arm L leg, h/a last night ?migraine – urgent
·21 July 2008 – numbness L ring/little fingers 2/52 comes and goes, similar feeling L scapular region – very tender/tight muscles upper TZ L>R – no signs problem L elbow or with fingers – Assessment: ?? Fibromyalgia but not typical features [emphasis added]
·17 September 2008 – discussed letter back from Dr Wong – Diagnosis: Bilateral Patellofemoral joint syndrome – Hypermobility Joints – Migraine – Asthma
·19 March 2009 – Mild, Acute Right Pain in arm – 2/52 sore swollen R arm, nil injury types ++ at call centre,… worse after day’s work, but can wake with it sore – Diagnosis: Moderate, Acute Right Lateral epicondylitis [emphasis added]
·6 April 2009 – ‘getting a lot better’ pain down 60% reduction… continue stage 1 until ergonomic equipment arrives
·13 May 2009 – still getting pain in R arm – now L a bit sore – hurts to change gears even, past 2/52 – attended P/T twice weekly for a while, but nil for 2/52… moderately tender lateral epicondyles bilateral – tender tight bilateral upper TZ, infraspinatus and interscapular – Diagnosis: Moderate Bilateral Lateral epicondylitis [emphasis added]
·1 June 2009 – swelling in arm gone down, pain settled, as ‘doing absolutely nothing’ – not doing any calls at work at present, training juniors … mild tenderness bilateral… continue P/T
·26 June 2009 – Reviewed and signed Return to Work Plan
·28 August 2009 – Case conference with… Konekt – got Dragon, Naturally speaking but not had training yet – not improving really as still typing +++ with work – nil P/T lately – still moderately tender
·28 October 2009 – massage on upper trapezius muscle x2 – pregnant 3.5 months – still tender/tight proximal forearm extensor muscles and upper trapezius muscle – discussed acupuncture
·16 November 2009 – mild tenderness prox forearm extensor muscles
·30 November 2012 – moved back from Canberra – back at call centre → pain neck shoulder arms, numbness ulnar 3 fingers bilateral was having acupuncture in Canberra, and massage therapy… for trial Esoteric Acupuncture
Between 1 May 2009 and 28 October 2018, Dr Joannou provided seven Workcover medical certificates with a diagnosis of ‘R lateral epicondylitis’ and six certificates with a diagnosis of ‘L lateral epicondylitis’.
I note at this point that in Dr Joannou’s records, there is no specific reference to bilateral shoulder pain and no record of a formal physical examination of either shoulder.
Dr P. Wong, Rheumatologist
Consultations from Mid-North Coast Arthritis Clinic recorded by Dr P Wong, Rheumatologist:
·20 August 2008 - Thank you for asking me to see Nicole, a 29yo call centre worker with hyper-mobility, knee pain and fibromyalgia - 15 yrs of arthralgia and myalgia… Morning stiffness some hrs. Raynaud’s for many yrs. Swelling of ankles, knees and PIPJ’s… Some of Nicole’s pain is due to joint hypermobility. This should respond to a general muscle-strengthening programme… Once she’s had few months of an exercise programme, whatever residual pain may be attributed to fibromyalgia. [emphasis added]
·10 December 2008 – Exercise programme not helping… Plan: Fibromyalgia. Encouraged her to be as active as possible.
·10 April 2014 – 5 yrs of R>L shoulder pain worsened by work activity and better with rest. Previously found bilateral shoulder injections of steroid helpful. The L shoulder injection provided relief for 5 mths but the R injected lasted 2 mths. No definite rotator cuff strengthening work via the physio. Describes bilateral mechanical knee pain… R sacro-iliac joint pain and “locking” … Sacro-iliac pain worsened during the 2 pregnancies. Manages to work 7 hours on Mon, Wed, Thurs in the call centre but the bilateral shoulder pain worsens… Referred her for an MRI of both shoulders… [emphasis added]
·22 May 2014 – MRI shoulders: bilateral subacromial bursitis… Worsening R>L shoulder pain… Working 21 hours per week (7 hours per day, 3 days per week). Been doing processing work with voice recognition software and managing this well. Now about to recommence call centre work.
·14 August 2014 – Bilateral shoulder pain flared recently but improved with an US-guided injection of steroid into both subacromial bursae… Working 8 hours per day (4 hours processing and 4 hours of call centre work), three days per week. Reasonable to continue… The subacromial steroid injections can be repeated 3-4 times per year. If she needs more than this then [Ms Zaveczky] should see Dr Jovanovic for arthroscopic subacromial decompression.
·24 July 2015 – Cancelled by pt – didn’t rebook
Dr M. Oliver, GP
On 11 January 2013, Dr Oliver provided a medical certificate in which he expressed the opinion that Ms Zaveczky has ‘RSI affecting her shoulders and forearms’. He stated that she ‘has tried physiotherapy and acupuncture with some help but does still get some considerable pain with this’.
On 12 January 2013, Dr Oliver recorded a consultation note as follows:
Long chat two main concerns – first rsi had for yrs, gets pains in shoulders and forearms, worse after working, relieved on holidays although always there – some relief from physio
Dr N. Wulff, GP
Consultations from Park Avenue Medical Centre recorded by Dr N. Wulff, GP:
·13 March 2013 - works at center link – has problems with pains in her arms and sometimes numbness – joint pains mainly wrist and shoulders – has been dia with RSI and fibromyalgia – o/e nil of note [sic]
·21 March 2013 – back ground h/o fibromyalgia and has submitted a WCC for RSI involving her Rt arm and forarm – c/o constant ache in her sholder and wrist …mixed picture with her fibromyalgia … Nil much I can offer – needs workplace assessment [sic]
In a Workcover medical certificate dated 21 March 2013, Dr Wulff stated that Ms Zaveczky suffered an injury diagnosed as ‘myalgia/RSI R lateral epicondylitis’ but did not indicate a date of injury or that her employment was a substantial contributing factor to her injury. Dr Wulff noted that Ms Zaveczky was fit for suitable duties.
Surgery Consultations from Coffs Harbour Medical Centre
Dr K. Pigram, GP
Consultations from Coffs Harbour Medical Centre recorded by Dr K. Pigram, GP:
·3 June 2013 – New pt hx obtained – re activation of old work cover injury – bilateral shoulder pain – states form [sic] using mouse – typing – goes away when not at ework [sic] – returns when working – hx of fibromyalgia –OE – neck movements nad abduction and eternal rotation nad [sic] some pain on internal rotation no impigment point tirggers [sic] [emphasis added]
·17 July 2013 – current right arm shoulder pain – neck pain n [sic] and pain at base of skull – OE – pain with abduction external and internal rotation flexion and extension [emphasis added]
·8 August 2013 – seeing physio – slow progress – x-ray nad – u/s bursitis – left shoulder pain also for x-ray nad – u/s bursitis for steroid injection [emphasis added]
·29 August 2013 – shoulder pain improved +++ with steroid injection now 3 weeks post – decreased breaks at work and tolerating well – enjoying work more on legal team – ongonig [sic] physio – left shoulder fine - OE normal rom – swelling right ant forearm? dequvians synovitis [sic] – us right for arm[15]
·9 October 2013 – left shoulder improved with steroid injection – right worsened after 2 days of typing
[15] The report of an ultrasound examination of the right wrist performed on 6 September 2013 stated that there is no evidence to suggest De Quervain’s tenosynovitis.
Dr N. Dhabuwala, GP
Consultations from Coffs Harbour Medical Centre recorded by Dr N. Dhabuwala, GP:
·14 February 2014 – both shoulder injury in 2009 at work - mainly by using mouse… still working - using Dragon – pain in both shouldrs [sic] – has had local steroid injection – seeing dr wong in march - on exam no tenderness in shoulder - restricted elevation – rest movements a bit weakness - ?cause of shouldr [sic] pain
·24 November 2015 – fit to preinjury duties – minimal mouse work… ct physio and exercises [emphasis added]
·17 February 2017[16] - shoulder pain recurred for last few months – right shoulder pain worse than left – seen physio few weeks ago – after a few days pain settled,,, left shoulder flared up last week as overusing… on exam restricted flexion right shoulder – mild discomfort left shoulder on abduction – Imp possible tendonitis/bursitis
·16 June 2017 – few weeks ago flare up of shoulder pain – referred to Dr Jovanovic… trial of local steroid injection for symptom relief
·6 March 2017 – left shoulder bursitis an [sic] tear – right shoulder stable
[16] There are no consultations recorded between 24 November 2015 and 17 February 2017.
In a letter to Comcare dated 15 January 2014, Dr Pigram stated that Ms Zaveczky had a history of ‘bilateral shoulder pain worse with typing and using the mouse. Prior workcover claim 2009. Similar symptoms returned’.
I note on perusal of all the consultations between June 2013 and February 2017, there is no reference to forearm or wrist symptoms and no record of physical examination of the wrist or elbow joints.
MEDICAL REPORTS
Dr G. Hall, Occupational Physician
In a report dated 20 February 2014, Dr Hall stated, inter alia, as follows:
Ms Zaveczky has worked for the Department of Human Services since 2007… She explained that there have been two major changes in the nature of work in that time, both increasing the proportion of work required with the mouse. The first of these occurred in 2009 and soon after the development of symptoms a full ergonomic assessment of her workplace was done and appropriate changes made. At about that time she began to use voice activated software (Dragon). A further change in the system was introduced later in 2013 which exacerbated her problem and since September 2013 she has been doing only work for which she can use voice-activated software.
Right lateral epicondylitis in 2009 – She did not pursue workers’ compensation although an initial Workcover certificate was issued on 19 March 2009 and lifting with the right arm was restricted to 2 kg. The condition was attributed to repetitive keying and she had physiotherapy but no elbow injections. ‘Fibromyalgia’ was diagnosed by a rheumatologist in 1966 and she was prescribed NSAIDs that had little effect.
Right upper arm pain started soon after the onset of right lateral epicondylitis (March 2009) but she did not make much of it at that time. A new more mouse -intensive system was introduced during 2009 and this probably contributed to her upper arm pain. She was advised to switch the mouse to her left hand and she subsequently developed similar symptoms in the left arm.
Symptoms settled during maternity leave but when she returned to work upper arm pain increased and steroid injections, one into each shoulder helped.
According to her history, and consistent with the notes of Drs Oliver and Wulff, the shoulder and arm symptoms had been present to varying degree for several years.
Right elbow pain is no longer of much concern but she experiences daily pain in the upper half of both upper arms at present right worse than left. Shoulder movement exacerbates the pain but she stressed that symptoms are very variable from day to day. On some days she finds it very difficult to drive or to wash her hair but manages nevertheless to attend work on these days.
There was a full range of left shoulder movement although both abduction and flexion appeared painful at the limit. On the right abduction and flexion were each 110º… Power and range of movement were normal at the elbows but there was some tenderness reported close to the right lateral epicondyle… Hand grip was strong and wrist movement full and pain free. [emphasis added]

Dr Hall stated that Ms Zaveczky’s condition was not ‘due to any pre-existing or underlying condition’ and has not suffered ‘an aggravation of a pre-existing condition’ but has simply ‘experienced longstanding symptoms of variable intensity’.
Dr Hall also stated that ‘there have been no discrete causal events but an association with increased mouse work appears consistent and symptoms have settled during periods of maternity leave’ and concluded that ‘on the balance of probabilities the conditions currently suffered are related to her employment with DHS. I am unaware of any health factors that have contributed to her condition and that are not related to employment’.
Dr A. Jovanovic, Treating Orthopaedic Surgeon
In a letter to Ms Zaveczky’s GP dated 22 October 2014, Dr Jovanovic stated, inter alia, as follows:
Thank you for referring Mrs Zaveczky a 35 year old lady who works for Centrelink call centre presenting with a history of troublesome bilateral shoulders for almost three years. Her symptoms started as forearm strain linked to her work practices in the call centre. At the time her workplace was modified to a certain degree and the forearm issues have settled. However since then she developed significant bilateral shoulder issues. Nicole describes a constant bilateral anterolateral shoulder ache radiating down her arm associated with difficulty with elevation and particularly troublesome at night. She finds it difficult to attend everyday activities including her work. She has difficulty playing with her children and even picking them up and lifting them. Nicole had extensive non-operative treatment so far including analgesia, anti inflammatory medications, physiotherapy and three ultrasound guided injections with local anaesthetic and cortisone in each shoulder. All three injections gave her some significant improvement… On the clinical examination Nicole had a full range of movement of the both shoulders associates with positive impingement signs in the supraspinatus isolation test. She had full strength of the rotator cuff muscles. However she also had 4 out 5 positive clinical signs for congenital laxity that does not help with her current condition… Bilateral MRI shows the bursitis with the tendinosis as a result of the possible impingement. However there is no MRI findings of the partial full tear of the tendons in the rotator cuff [sic]… Nicole is a good candidate for arthroscopic subacromial decompression and rotator cuff debridement and removal of bursa. After having discussed the pros and cons for the above procedure including the risks and complications Nicole requested the surgery. I will write a letter to Workers Compensation… [emphasis added]
In a letter dated 25 November 2014, Dr Jovanovic stated that an arthroscopy of Ms Zaveczky’s right shoulder revealed ‘impingement and a mild rotator cuff tendinosis in addition to the subacromial bursitis’ and that she underwent ‘arthroscopic subacromial decompression and mini open rotator cuff debridement’.
In a letter dated 23 January 2015, Dr Jovanovic stated that on examination during the last visit Ms Zaveczky had ‘developed a frozen shoulder that will require further surgical attention’.
In a letter dated 5 February 2015, Dr Jovanovic stated that ‘investigation with ultrasound… confirmed my clinical diagnosis of adhesive capsulitis’ and noted that a request for the payment of further management in the form of ‘manipulation under anaesthetic and ultrascopic release of the contracture was declined [by Comcare]’.
In a letter dated 4 August 2015, Dr Jovanovic stated that ‘manipulation was performed and arthroscopic findings revealed classic signs of adhesive capsulitis… manipulation under anaesthetic achieved a full range of movement of the shoulder…’.
In a letter dated 30 September 2015, Dr Jovanovic stated that following the last surgical procedure, Ms Zaveczky had made further improvement and has ‘very little pain and a good range of movement’ and is ‘functioning well’. He also noted that she had ‘gone back to work on her normal duties’.
In a letter dated 31 July 2017, Dr Jovanovic stated that he had met Ms Zaveczky in the past when she had ‘right rotator cuff decompression and debridement’ but now ‘has left shoulder symptoms similar to what she had in the right shoulder before the first surgery’. He also noted that after discussion about the ‘natural history and treatment options of this condition’, Ms Zaveczky was keen to proceed to surgery.
In an operation record dated 15 June 2018, operation findings in respect of the left shoulder are noted as ‘A) Significant tendinosis of the rotator cuff without a full tear B) Significant impingement on the undersurface of the acromion with a subacromial bursitis’.
Dr S. McBurnie, Consultant Occupational Physician
In a report dated 11 February 2016, Dr McBurnie stated, inter alia, as follows:
Ms Zaveczky has a constant ache inside the right shoulder joint. The pain is aggravated by reaching up and out. The range of motion of the right shoulder is restricted… She is able to use her right hand at table height… She reported an improvement in right shoulder function after the manipulation in August 2015 … Surgery for the left shoulder has been suggested but… is not going down that path given the outcome of surgery on the right.
Abduction was to about 60º on the right with about 90º of flexion. On the left abduction and flexion was to about 160º…
Ms Zaveczky reported no significant aggravation of symptoms since moving to the role in Families. She is able to utilise voice activated software successfully, limiting the amount of upper limb use… appears to have had a successful return to work with less pain and less time off in the new role in Families.
Dr F. Shahzad, Consultant Occupational Physician
In a report dated 27 September 2017, Dr Shahzad stated, inter alia, as follows:
Ms Zaveczky reported that in 2009, the keyboard system was changed. This reduced use of keyboard and increased mouse clicking activity. She was working eight hours per day at that time. She noticed development of right arm pain and swelling. She recalled swapping the mouse to the left side, which ended up flaring up her left shoulder[17]… She had maternity leave in 2010 and 2011… Her symptoms did not fully settle during her leave time. Her symptoms increased again after a couple of weeks on returning to work. This continued despite regular physiotherapy… In November 2014, Dr Jovanovic diagnosed her with right shoulder issues. She subsequently had surgery in November 2014 as a right shoulder subacromial decompression… Post-operatively, after five to six weeks, she developed more pain in her right shoulder and was diagnosed with a frozen shoulder. She had a capsule release surgery via manipulation under anaesthesia in August 2015. This was quite successful and her symptoms improved.
In regards, to her left shoulder, she described that since 2011, she has had physiotherapy and strapping. She has conservatively managed her left shoulder.
She reported, in February 2016, she had progressive deterioration of her left shoulder,[18] but it settled during leave…
Ms Zaveczky is independent with activities of daily living. She finds that at times her shoulder comes in the way of dressing and manoeuvring. She is able to do cooking… she has been unable to do any cleaning, vacuuming, and mopping… she reported that her right shoulder condition has plateaued and is currently stable. She is more concerned about the pain in the left shoulder…
Ms Zaveczky reported that she had a similar condition in 2009 of her left shoulder. She has been suffering from fibromyalgia effecting her upper and lower limbs. She reported that this has not gotten worse…
She also reported that she is mindful of the outcome of her right shoulder, while proceeding with surgery on the left shoulder. She is planning to have surgery on the left shoulder by the same surgeon. She described her shoulder issues to arise from desktop mouse activity.
Diagnosis: Partial thickness supraspinatus tear of the left shoulder with bursal bunching on abduction. …there are no signs of shoulder impingement. There is a definite reduces range of movement identified on both shoulders.
She did not have any pain over the lateral or medial epicondyles on both sides.
[17] This is not supported by contemporaneous documentary evidence.
[18] This is not supported by contemporaneous documentary evidence.
In respect of Ms Zaveczky’s claimed condition of ‘left shoulder bursitis, tendinosis and rotator cuff tear’, Dr Shahzad stated, inter alia, as follows:
In my opinion using a mouse in the left hand does not significantly contribute to the claimed condition. I have extensively reviewed the literature on ODG evidence-based decision support and the AMA Guides to the Evaluation of Disease and Injury Causation. I have also looked up peer-reviewed medical journal database…
According to ODG guidelines, 80% of patients with a diagnosis of small or partial-thickness rotator cuff tear or acromial impingement syndrome resolve without surgery. Repair of rotator cuff tears can improve pain and function for carefully selected patients, although conservative treatment has reported outcomes of an equivalent level to surgical management, but without surgical risk. One third of rotator cuff repairs ultimately fail, three out of four within three months of surgery.
In regards to causality for rotator cuff impingement, a review by NIOSH of 20 epidemiological studies of occupational factors associated with rotator cuff impingement found that there is evidence of an association between repeated or sustained shoulder-reaching process with greater than 60º of flexion or abduction and rotator cuff impingement. There is a strong evidence for relationship between a combination of risk factors (example, force and repetition, force and posture) and rotator cuff impingement. Evidence is strongest, when there is combined exposure to several physical factors like holding a tool, while working overhead…
In my opinion, the literature provided does not demonstrate that there is a significant degree of contribution in Ms Zaveczky’s case to result in bursitis, tendinosis or rotator cuff tear.
In response to various questions put by AAIL, Dr Shahzad stated, inter alia, as follows:
The diagnosis of left shoulder was based on history, subjective presentation, reported symptoms and clinical examination findings. These were correlated and confirmed with Ms Zaveczky’s clinical imaging…
She has reported the causation factor to be purely desktop use, working on a keyboard and mouse and using the mouse on her left hand…
Ms Zaveczky has not outlined any single incident of injury that would have resulted in her presentation. She described repetitive use of the mouse and keyboard and desktop activity as contributory to her current diagnosis and symptomatology…
Fibromyalgia usually results with widespread aches and pains, which are not focussed on any particular area and may involve muscles, back, neck and result with chronic diffuse pain…
Ms Zaveczky’s condition is considered to be long-standing for a few years, However, it is not considered to be an aggravation, acceleration or recurrence of any pre-existing, degenerative or underlying condition…
She has been on reduced work hours for several years. In the context of her history, presentation and review of evidence-based literature, there is minimal causation identified for her claimed condition.
In a report dated 13 March 2019, Dr Shahzad revisited the relevant issues that had been considered in his earlier report and added, inter alia, the following:
She described that sitting with her arm in the mouse-using position for extended periods has caused right lateral epicondylitis which settled with physiotherapy. Subsequently she began using her left hand which resulted in pain in her shoulder[19]…
She underwent left shoulder surgery in 2018 which was subsequently complicated by frozen shoulder and adhesions. She is currently on the public wait list for capsular release surgery, with an expected date of November 2019…
Bilateral examination of the elbows demonstrates no tenderness, pain, swelling and a normal range of flexion, extension, pronation and supination. Provocation tests… were negative. Wrist joint examination identified no tenderness, swelling and normal range of movement…
She presents with ongoing deterioration of her longstanding issues. Work is not identified to be a causative factor and there is no additional evidence on today’s assessment to justify that work is considered to be a significant contributing factor.
She reported that her left shoulder range of movement has improved following the surgery. Her recent imaging has identified signs of adhesive capsulitis.
In regard to her medical condition work has not been identified as a significant contributing factor and her presentation is considered an ongoing degenerative condition due to her personal or pre-existing injury…
She has reported causation from previous work within the department using a desktop, keyboard and mouse which she associates with her bilateral shoulder pain. No specific causation has been reported that is consistent with her symptomatology and chronology of events.
The proposed diagnosis and symptomatology is not consistent with the mechanism as there is no plausible evidence to support causality.
[19] This is not supported by contemporaneous documentary evidence.
In a supplementary report dated 15 September 2020, in respect of additional medical evidence Dr Shahzad stated that his previous assessments had focussed on the left shoulder condition and that he was unable to comment on the ‘medical conditions affecting the right shoulder’.
However, he confirmed that there was nothing in the new material that would cause him to alter his opinion that he did not believe ‘the use of a mouse in her hand contributes significantly to her claimed condition of left shoulder partial thickness supraspinatus tear of the left shoulder later presenting as adhesive capsulitis’.
Dr Shahzad attended the hearing by video conference and, in his evidence in chief, confirmed that rotator cuff pathology is a common finding in the population, is frequently bilateral in the older population, and may be asymptomatic.
Dr Shahzad stated that the opinions he expressed in his reports were based on 15 years of clinical experience in worker’s compensation and the medical literature including ‘the ODG evidence-based decision support which is a real-time online platform’[20] and the ‘AMA causation textbook’.[21]
[20] ODG for Worker’s Compensation: Industry Leading Medical Treatment & Return-to Work Guidelines.
[21] AMA Guides to Disease and Injury Causation – 30 July 2013- 2^ndrevised edition.
Dr Shahzad explained that ‘with repetitive strenuous activity or in the position of abuse or abduction beyond 60 degrees above shoulder level activity I’d normally anticipate that rotator cuffs would be under more stressors compared to somebody who’s working in a neutral position, just on the keyboard or typing away and hanging the shortest arms down without enforce or repetitive movement of shoulder’. He also agreed that desktop activity was unlikely to lead to shoulder pathology or cause a permanent pathological change.
Dr Shahzad told the Tribunal that his 2017 and 2019 report were focussed on the left shoulder condition, because that was his brief, however, he agreed that, in terms of rotator cuff pathology, it is ‘the same physical mechanism’ on both sides.
Dr Shahzad was asked by counsel to consider his understanding of the distinction between exacerbation and aggravation of an underlying pathological condition. Dr Shahzad agreed with the proposition put by counsel that exacerbation is an expression of a temporary worsening of symptoms associated with an already existing pathology and that aggravation is an expression that means ‘a permanent change to the pathophysiological process’.
When asked whether in his opinion, Ms Zaveczky’s work caused ‘a permanent change to the underlying pathophysiological process affecting her shoulders’, Dr Shahzad stated ‘I don’t consider that would be the case, employment wouldn’t be a substantial contributing factor to cause or result in significant trauma, that it would cause a permanent change or an aggravation. But the situation could be different if she were engaged in repetitive overhead work’.
Dr Shahzad agreed that Ms Zaveczky‘s underlying pathology was responsible for the symptoms and disability, of which she complained, and the fact that she experienced symptoms at work doesn’t necessarily establish causation. He agreed that in this case we are dealing with ‘post hoc ergo proctor hoc’[22] causal fallacy because the underlying pathology is causing the symptoms rather than the duties.
[22] ‘after this, therefore, because of this’.
Dr Shahzad also agreed that, as a result of her rotator cuff pathology, it was more likely that Ms Zaveczky would be symptomatic with activities of daily living rather than with her sedentary keyboard or mouse work.
In response to the question ‘The pathology that we’re talking about in the rotator cuff, would you expect it to be more likely to be symptomatic with activities at home, such as – or elsewhere, such as pushing a shopping trolley than sedentary keyboard or mouse work?’, Dr Shahzad said that ‘a rotator cuff is quite a strong muscle so for it to be injured, there has to be substantial irritation with force or maybe on a repetitive pattern. So, I would anticipate to see more shoulder movements, as you would see in mopping, sweeping, scrubbing, hanging clothes, doing laundry, pushing a heavy trolley or possible playing with children, lifting children as well’.
Questions asked in cross examination did not assist the Tribunal in light of the weight of other medical evidence.
Dr G. Bookless, Consultant Orthopaedic Surgeon
In a medical report dated 30 May 2018, Dr Bookless stated, inter alia, as follows:
Ms Zaveczky is a 39-year old lady who works with the Department of Human Services… was originally a call centre operator but over recent years has been on modified own duties working 20 hours a week processing claims using Dragon technology…
I noted that Ms Zaveczky has a current diagnosis of rotator cuff tendinosis and impingement, left greater than right… She has a past history of subacromial bursitis right and left shoulders, supraspinatus strain left and lateral epicondylitis of the right ‘shoulder’ [sic].
Ms Zaveczky stated that with respect to her left shoulder, she became aware of left shoulder discomfort with working activities using the mouse and the keyboard on 1 March 2011.[23] She subsequently had time out with her pregnancy and the shoulder settled. She returned to work in November 2012 and again became aware of discomfort and restricted range of movement of the left shoulder.
Over the subsequent years she had investigations… had a subacromial steroid injection and was treated with physiotherapy… was troubled with much more severe pain in the right shoulder… came to a surgery in November 2014… had a manipulation of the right shoulder in August 2015… was cleared to resume working activities as of 24 November 2015…
Ms Zaveczky has occasional difficulties in dressing with left shoulder pain… is unable to push a shopping trolley… is able to manage her personal activities of daily living… Domestically, her activities are… similarly limited and her husband does the cleaning… She can only drive a car for 30 minutes… she does no gardening.
[23] This is not supported by contemporaneous documentary evidence.
Dr Bookless concluded that ‘Ms Zaveczky suffered with a bilateral rotator cuff tendinitis and subacromial bursitis dating back to 2011… has undergone conservative treatment for the left shoulder and had surgical treatment on the right shoulder’.
In response to specific questions, Dr Bookless stated, inter alia, as follows:
The causative factors for this diagnosis are constitutional in nature… The mechanism of production of these conditions is not consistent with the use of keyboard and mouse[24]… Ms Zaveczky’s employment is not the cause of her current diagnosis… The present injury as stated by Ms Zaveczky is merely a continuation of the original symptoms as started in 2011.[25] It is not a recurrence… The current symptomatology is not the result of any specific nature of her employment… There is no element of work related injury pertaining to her current symptomatology… Employment has no contributing effect.
[24] Reference page 320 AMA Guides to Evaluation Disease and Injury Causation Edition 2”
[25] There is no convincing to support a conclusion that claimed symptoms in 2011 were caused by rotator cuff pathology.
Associate Professor P. Navathe, Consultant Occupational Physician

A report dated 19 February 2019 was provided by Associate Professor Navathe at the request of Ms Zaveczky’s solicitors. This report was withheld from the Respondent and obtained under summons.
In response to a question as to whether Ms Zaveczky’s shoulder condition was ‘as a result of her employment’, Associate Professor Navathe stated, inter alia, as follows:
Ms Zaveczky said that she had had no accident and the pain in her shoulder had come on over a period of time from about 2009 up to 2013 when she put in the WorkCover claim… Coming to the question of whether or not I consider her condition to be as a result of her employment, it appears to be abundantly clear that the diagnosis in Ms Zaveczky’s case is of bilateral rotator cuff injuries and bursitis in the shoulders… Chronic tears are typically found amongst people in occupations or sports requiring excessive overhead activity such as painters, baseball pitchers, tennis players, bakery workers etc… it can also be brought on by repetitive trauma to the muscle by everyday movement of the shoulder. However, this usually requires the shoulder to be moved above the height of the shoulder that is the movement needs to be above 90º… The tendinitis can happen as a result of degeneration of the muscles and tendons arising with age… In Ms Zaveczky’s case, the purported mechanism of injury is ongoing repetitive movements of the hand and forearm as would occur when there is movement of the keyboard and the mouse. Such a mechanism does not seem to fit the kind of movements that are required for an acute or chronic injury to occur. This is also substantiated by the AMA guides to the evaluation of disease and injury causation which stated that the mechanism for occurrence of these conditions is not consistent with the use of keyboard and mouse… Looking at the literature. Ms Zaveczky is also at increased risk of shoulder pain because she is female, has fibromyalgia, has had psychological distress and is a smoker (all of these are individual risk factors).
Looking at the time relationship it would appear that there has been some relationship between the workplace and the onset of pain in the lower arm which is explainable and which is well known to occur. However, the problem arises on trying to make the link between pain in the lower parts of the limb (meaning the wrist and the forearm) and injury to the shoulders… this relationship is difficult to support based on the type of activity… I have not been able to suggest an alternative mechanism for what may have happened beyond those I have already mentioned above. Therefore, having considered all the possibilities, it seems unlikely that the shoulder problems that Ms Zaveczky has had were brought on by her employment. [emphasis added]
On 25 May 2020, Ms Zaveczky’s solicitors sent copies of two supplementary reports from Associate Professor Navathe, dated 13 February 2020 and 17 April 2020, to the Respondent’s lawyers and to the Tribunal.
On 2 June 2020, Ms Zaveczky’s solicitors sent an email to the Respondent’s lawyers and to the Tribunal stating that they were ‘instructed to withdraw service’ of the two reports as Ms Zaveczky ‘does not rely on the reports’.
At the hearing, counsel for Ms Zaveczky submitted that the reports were not admissible because they were medicolegal reports obtained by Ms Zaveczky, service of them was withdrawn and Associate Professor Navathe would not be available for cross examination.
After due consideration and the fact that both the Respondent and the Tribunal were aware of the existence and content of the reports, the Tribunal decided to admit both reports into evidence. The Tribunal considered it was preferable to consider the reports and apply them appropriately rather than make an adverse inference about the contents of the reports.[26]
[26] Jones v Dunkel [1959] HCA 8; 101 CLR 298.
In the supplementary report dated 13 February 2020, Associate Professor Navathe, in reference to the condition of ‘aggravation of lateral epicondylitis (right)’, stated it is ‘a gradual process injury which could potentially arise out of her employment, as the precipitating cause for the pain are extension of the wrist and these postures are commonly encountered in the workplace in the type of work being carried out by Ms Zaveczky’.
With reference to the conditions of ‘Subacromial bursitis (Right), supraspinatus tendinopathy, and subacromial bursitis (left), and Supraspinatus (muscle) (tendon) strain (Left)’, Associate Professor Navathe stated that these are all conditions ‘arising out of a gradual process of some type’ and added that ‘her work activities do not appear to have a particular characteristic that caused the harm, given that most of the activities described in her work occur with the hands well below shoulder level’.
In the supplementary report dated 17 April 2020, Associate Professor Navathe concluded that Ms Zaveczky’s work conditions ‘appear to contribute significantly’ to the condition of ‘aggravation of lateral epicondylitis (right)’.
With reference to the conditions of ‘Subacromial bursitis (right), supraspinatus (muscle) (tendon) strain (left), subacromial bursitis (left), adhesive capsulitis and supraspinatus tendinopathy’, Associate Professor Navathe stated that these conditions ‘did not arise out of the employment’ but did arise ‘during the course of her employment’.
Professor P. Youssef, Consultant Rheumatologist
Professor Youssef provided a very comprehensive 46-page report dated 2 April 2019 as well as copies of three reviews on UptoDate.[27]
[27] Bursitis; Frozen Shoulder (adhesive capsulitis); Shoulder Impingement Syndrome.
The factual narrative in the report is very detailed and similar to the history provided by Ms Zaveczky in her written and oral evidence and is also consistent with details already presented above.
For present purposes, I intend to limit my reporting to extracts from the report which I believe demonstrate relevant issues with emphasis added.
The extracts from Professor Youssef’s report are, inter alia, as follows with emphasis added:
BACKGROUND AND WORK HISTORY
Ms Zaveczky is 40 years of age… She began working with the Department of Human Services – Centrelink on 21 February 2007… She said that in 2009 there was a change in the computer systems from the old hot keys used in a keyboard to a mouse based system. She said that she developed her symptoms in 2009. In April 2010 she took maternity leave for the birth of her first child. She returned to work in March 2011 on a part time basis of 21 hours per week to have more time for her child… In September 2011 she took another 12 months of maternity leave for her second child… she returned to work in Coffs Harbour in September 2012 on a part time basis…
In March 2009 she began to develop discomfort over the right forearm radiating up into the arm and right shoulder… the discomfort was mainly over the posterior and lateral aspect of the forearm and the lateral aspect of the right elbow. She said that she had been using a mouse based computer system for a few months prior to the onset of the symptoms… she was treated with physiotherapy and anti-inflammatories which reduced her symptoms. She began using the mouse with the left hand and said that she developed similar symptoms on the left side. The symptoms were worse at the end of the day.
She took maternity leave in April 2010 and said that her symptoms significantly improved but did not resolve. She said that she was able to be the primary carer for her baby without any major problems. By the time she returned to work in March 2011,[28] she was experiencing very little in the way of symptoms. She asked to work on a part time basis and began working for 21 hours a week over three days, Mondays, Wednesdays and Thursdays. She said that an occupational therapy assessment was offered to her and that symptoms were so good on her return to work that she did not need this assessment.[29]
[28] Ms Zaveczky’s Individual Leave History Report indicates she returned to work on 21 February 2011.
[29] An early assessment was conducted on 9 March 2011 supra paras 59 and 70.
Approximately two weeks after returning to work she developed a recurrence of the symptoms in the upper limbs. She reported that the symptoms were most severe while at work and would improve over the weekend… She continued to work but was given alternate duties… She said she wanted to increase her work hours for financial reasons and that this was refused because she had a prior injury.
In September 2011 she moved to Canberra… she took maternity leave from November 2011… made a return to work in September 2012.[30] She reported that her symptoms had improved significantly while on maternity leave… She returned to work for 21 hours per week on Mondays, Wednesdays and Thursdays. By the time that she had returned to work, her symptoms had improved significantly, and she was not taking any pain medications. She initially worked in her usual duties and reported that her symptoms recurred and that she was finding it increasingly difficult to care for her children. She was treated with physiotherapy, massage and anti-inflammatories. She said that she wanted to increase her hours and that this was formally refused because she had sustained a previous injury. She said she was given work in Legal Services which was better tolerated as she could use Dragon Naturally Speaking more often and could also reduce her mouse work. She said that her work did not involve use of the upper limbs above shoulder height. Despite the change in duties, her symptoms continued.
[30] Leave records T14.1.6: On leave from 29 September 2011 to 16 September 2012.
She consulted Dr Jovanovich in 2014 and was diagnosed with bilateral shoulder bursitis and tendonitis… By that time, the elbow pain had virtually resolved and the discomfort was mainly in the shoulders… In November 2014 she underwent arthroscopic surgery of the right shoulder… which was complicated by a frozen shoulder. She told me that [she] made a return to work for two or three months before undergoing a release procedure. She was off work until January 2016. She said that, during this period her left shoulder virtually recovered…
After returning to work in June 2016 she again developed symptoms in both shoulders, more marked on the left than the right… She consulted Dr Jovanovich in 2017 and was placed on the public hospital waiting list. She continued to work for three days a week. On 7 June 2018, she underwent an arthroscopic procedure to the left shoulder which was also complicated by a frozen shoulder. [emphasis added]
SUMMARY AND ASSESSMENT
Ms Zaveczky reported developing discomfort in the right shoulder, right side of the neck, elbow and wrist dating back to March 2009… It would appear that the right elbow was probably the main symptomatic region as evidenced by a workcover certificate written by Dr Joannou on 6 April 2009 in which the diagnosis is documented as being right lateral epicondylitis.
An ergonomic workstation assessment report dated 30 March 2009 documented that her role was to take incoming calls using a telephone headset and to enter changes onto a computer database… She was given an upright mouse, keyboard and gel wrist rests and a special number pad. Therefore, at the time she developed her symptoms in 2009, she was involved in essentially sedentary work that did not require her to work above chest or shoulder height and that would not have caused an injury to her right shoulder…
… the symptoms in March 2009 appear to have virtually resolved during the maternity leave. This is somewhat surprising as I would have expected the tasks of caring for a baby might put more of a strain on her upper limb musculature than sedentary work and that these activities were more likely to cause or exacerbate upper limb discomfort.
In her undated statement, Ms Zaveczky documented that she began to experience pain and swelling in the left arm and shoulder in March 2011 after returning to work. I am unable to explain this pain as a result of her work duties as she was only working part time and her duties remained sedentary. As her right upper limb symptoms had settled by the time she restarted work in February or March 2011, there was no requirement to favour her left upper limb and no clear reason as to why she would develop left upper limb symptoms at that time. Furthermore, it is surprising that she developed symptoms so soon after returning to work, particularly as her duties were sedentary and part time. Again, I was somewhat surprised that caring for a baby did not cause symptoms in the shoulders and yet sedentary work that did not involve a significant strain on her shoulders caused symptoms, even taking into account that she may have received support from family members with the care of her baby.
Ms Zaveczky then appeared to develop more generalised upper limb symptoms such that a letter from Dr Matt Oliver to Centrelink dated 11 January 2013 (T36.3) documents a diagnosis is made of RSI affecting the shoulders and forearms. Furthermore, Dr Waulff, documents on 13 March 2013 (T5.1) that there were pains in her arms, wrists and shoulders as well as numbness in the arms and face associated with a full range of movement in her joints. It would appear that the cause of her symptoms was not thought to be primarily musculoskeletal as she was investigated with an MRI brain on 19 December 2012 rather than tests aimed at diagnosing a musculoskeletal cause for her symptoms. These symptoms were akin to the symptoms that she had been experiencing for many years. Her work would not have caused widespread bilateral upper limb pain with facial and upper limb numbness. These symptoms remain unexplained but probably represent a continuation of her longstanding symptoms that have been labelled as fibromyalgia.
Ms Zaveczky then makes a worker’s compensation claim on 11 November 2013 (T4) in which it is documented that both arms were injured, and that the injury was first noticed on 7 March 2013… It is documented that the diagnosed condition was bilateral shoulder bursitis and tendonitis… Ms Zaveczky did not describe to me any specific injuries that occurred in March or October 2013[31] and the medical notes[32]… document clearly that she was experiencing bilateral upper limb symptoms prior to March 2013.
[31] Ms Zaveczky had lodged incident reports on 7 March 2013 and 21 October 2013.
[32] Dr Oliver – 11 January 2013.
It seems likely that she developed impingement symptoms in or around July 2013. Ms Zaveczky’s general practitioner on 17 July 2013 documented that there was right arm shoulder pain that was different from the fibromyalgia and that there was pain with abduction, external and internal rotation, which would be consistent with a rotator cuff disorder. Furthermore, on 10 April 2014, Dr Wong documents the examination findings of bilateral shoulder impingement with abduction and painful resisted supraspinatus movement…
An ultrasound of the right shoulder performed on 4 August 2013 was reported as showing mild subacromial bursitis but no tear. The finding on ultrasound is very minor but could explain impingement symptoms… an MRI scan of the right shoulder performed on 12 April 2014 that showed a Type II acromion and a subdeltoid effusion… the symptoms of impingement in the right shoulder were probably due to the combination of a small supraspinatus tear and mild subacromial bursitis although similar ultrasound findings can be found in asymptomatic patients…
An ultrasound of the left shoulder performed on 6 September 2013 showed moderate thickening of the supraspinatus tendon and of the subacromial bursa but no tears… An MRI of the left shoulder was performed on 16 April 2014 and also showed subdeltoid/ subacromial bursal effusion and a tendinopathy in the supraspinatus but no tear. These findings are also relatively mild but could explain the impingement symptoms…
Her work was not such that it would predispose her to developing a shoulder tear or bursitis as she was not required to work above chest or shoulder height…
The condition of subacromial bursitis the absence of a significant rotator cuff tears can occasionally be inflammatory although it is mostly a mechanical condition related to movements of the shoulder above shoulder height. This condition on the right may have been contributed to by the presence of a Type II acromion which is a constitutional disorder…
I enclose a copy of a review of subacromial bursitis from Uptodate which is a highly respected source of medical information. This documents that the subacromial bursitis pattern of symptoms usually occurs in conjunction with other pathology such as rotator cuff tears, an impingement syndrome, frozen shoulder or a systemic inflammatory disorder… It is possible that the subacromial bursitis was the presenting feature of shoulder capsulitis and that she was going to develop shoulder capsulitis independent of whether she underwent surgery although I think it is more likely that the capsulitis occurred as a direct result of surgery, which is a well recognised complication… it is most likely that her subacromial bursitis was due to shoulder impingement syndrome. I enclose a copy of a review of this condition from UptoDate which documents that repetitive activity at or above the shoulder during work or sports represents the main risk factor of this condition[33] and in particular in athletes who participate in overhead sports. Her work did not involve activities at or above shoulder height and she did not partake in any sporting activity that would have placed her at risk of developing this condition. I agree with Drs Bookless and Shazad that her work activities would not have predisposed her to the development of impingement, subacromial bursitis or capsulitis…
In answer to your [Comcare’s] specific questions
Ms Zaveczky developed subacromial bursitis in both shoulders with impingement symptoms… This condition is associated with upper limb activities above shoulder height. Ms Zaveczky’s work was not associated with such movements. Also, on questioning her she did not appear to perform activities outside of work that would have been associated with the development of this condition, Shoulder conditions are common in the community and it is my opinion that there is a significant constitutional component to her condition… She also developed capsulitis of both shoulders which appears to have been caused post surgically. This is well described. It is unusual for patients to develop post-surgical capsulitis in both shoulders which suggests that she has a constitutional predisposition to the development of this condition.
It is my opinion that her employment with the Department of Human Services was not a factor as it did not require her to work above shoulder height. Computer work or mousing does not predispose to the development of shoulder impingement or capsulitis.
Her employment did not contribute to the development of subacromial bursitis or shoulder impingement. It has not contributed to the development of capsulitis which has occurred as a result of shoulder surgery.
It is my opinion that her employment does not currently and has never contributed to her conditions. [emphasis added]
[33] Shoulder impingement syndrome.
Professor Youssef attended the hearing by video conference.
Evidence in chief
Professor Youssef confirmed that rotator cuff pathology is common in the general population, frequently bilateral, often asymptomatic, even with significant pathological change found in either unilateral or bilateral imaging, and that symptoms increase with ageing. He said that ‘for example, with bilateral cuff patients with a symptomatic full thickness tear on one side, about a third of them will have an asymptomatic full thickness tear on the other side’ and that ‘this suggests that there is a significant degenerative process going on and… not all patients are symptomatic and symptoms can develop over time’.

Also, I note at this point that the Tribunal has not been provided with documentary evidence of any medical consultations between the two consultations by Dr Joannou on 16 November 2009 and 30 November 2012. Therefore, it is difficult to form a meaningful conclusion as to the cause or severity of her claimed shoulder symptoms during this time.
On the available evidence, I am not persuaded that any shoulder ‘symptoms’ suffered by Ms Zaveczky during this period were caused or aggravated by her employment.
Ms Zaveczky claims that in early 2013, her shoulder symptoms increased because she had returned to work and had to seek medical attention. She consulted Dr Oliver in January 2013 and Dr Wulff in March 2013. The consultation notes, set out above, can best be described as incomplete and, for present purposes, are of little assistance.
At that time, the cause of Ms Zaveczky’s claimed increase in symptoms was unclear, however, her clinical presentation in June 2013 and the subsequent confirmation of bilateral rotator pathology suggests that the increase in symptoms was likely to be related to the shoulder pathology.
The evidence demonstrates that, during the second half of 2013 and 2014, despite initial relief of her symptoms with conservative medical treatment, Ms Zaveczky’s right shoulder pain persisted and surgical intervention was recommended.
In March 2014, Comcare accepted liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’[43].
[43] There is no convincing evidence that in 2014, Ms Zaveczky continued to suffer right epicondylitis.
The decision was supported by a report provided by Dr Hall, occupational physician, who stated that ‘there have been no discrete causal events but an association with increased mouse work appears consistent and symptoms have settled during periods of maternity leave’ and that he was ‘unaware of any health factors that have contributed to her condition and that are not related to employment’.
In my view, Dr Hall did not provide a convincing rationale for his conclusion that Ms Zaveczky’s employment significantly contributed to her bilateral rotator cuff disorder.
In November 2014, the first operation on the right shoulder was successfully performed, however, a significant postoperative complication[44] led to a requirement for further surgery which significantly delayed Ms Zaveczky’s recovery.
[44] Adhesive capsulitis.
However, in November 2015, Ms Zaveczky was able to return to work and was declared ‘fit for preinjury duties’.
In a report dated 11 February 2016, Dr McBurnie noted that Ms Zaveczky was referred for an assessment of her ability to engage in a rehabilitation program in accordance with section 36 of the SRC Act and noted that she ‘appears to have had a successful return to work with less pain and less time off in the new role in Families’.
During 2016, Ms Zaveczky continued at work. Her Individual Leave History Report[45] records that, during 2016, she had relatively frequent absences from work for personal illness and family carer commitments.
[45] 2018/1166 - Section 37 Documents T14.1.6 page 141.
On 4 January 2016, Ms Zaveczky was unable to attend work because of ‘a world of pain’ as ‘her new medication had not yet kicked in’. On 30 March 2016, Ms Zaveczky was unable to attend work because of ‘pain in her shoulder and arm’. There was no record of any other absences from work during 2016 because of shoulder pain.
Also, there is no evidence of any further medical consultations until 17 February 2017 when Ms Zaveczky presented to her GP, Dr Dhabuwala, complaining of a recurrence of shoulder pain ‘for the last few months’, right worse than left.
Ms Zaveczky claims that the recurrence of her left shoulder pain was caused by the need for increased use of her left arm because of the limited use of her right arm during the prolonged recovery after her first operation.
On 3 March 2017, an ultrasound examination of the right shoulder is reported showing ‘a small laminar intrasubstance tear in the supraspinatus measuring only 4 mm in diameter… no sonographic evidence of impingement’.
When compared with the MRI performed in April 2013, there is evidence of improvement in the pathology with no evidence of ‘effusion’ or ’impingement’.
On 3 March 2017, an ultrasound examination of the left shoulder is reported as showing ‘a small deep surface partial thickness supraspinatus tear about 3.5 mm in diameter. There was mild bursal thickening with mild bursal bunching on abduction’.
When compared with the MRI preformed in April 2014, there is evidence that over a three-year period there was some minor change in the pathology with the development of a ‘3.5 mm partial thickness tear’.[46]
[46] This change in pathology over a three-year period is consistent the natural history of Ms Zaveczky’s rotator cuff disorder as outlined in the expert evidence above.
On 11 August 2017, Dr Dhabuwala noted that Ms Zaveczky’s ‘left shoulder had worsened’ and that she had been seen by Dr Jovanovic and ‘needs arthroscopy’.
On 17 August 2017, Ms Zaveczky lodged a new claim for ‘left shoulder bursitis, tendinosis and rotator cuff tear’ caused by ‘mousing and keying whilst performing my usual duties’ which was rejected by Centrelink.
Expert medical evidence
The Tribunal has been provided with expert evidence from three orthopaedic surgeons, five occupational physicians and one rheumatologist, which has been set out above in considerable detail and I do not intend to repeat.
The clinical records of Dr Jovanovic and the reports of Dr McBurnie and Dr Khan did not specifically address the issue of ‘causation’ and, therefore, for present purposes are of limited assistance.
In the written and oral evidence of the remaining experts, there was unanimous agreement that rotator cuff pathology commonly occurs in the general population, is more prevalent in the older population, often occurs in both shoulders at the same time and is often asymptomatic despite significant abnormality seen on imaging.
There was unanimous agreement that the disorder is a constitutional degenerative condition that progresses over time and is probably genetically determined. The clinical onset of the disorder was considered to be quite variable. Sometimes it presents following an acute incident in certain occupations or sporting activities but usually presents gradually with pain caused by ‘bursitis’ or ‘impingement’[47] with no specifically identifiable incident.
[47] Pain on elevation of the arm above shoulder.
There was general agreement that the onset of symptoms and the progression of the disorder, occurs in circumstances where there is repetitive or forceful overhead arm activity.
There was majority opinion that sedentary keying and mousing activities are not causal risk factors in respect of rotator cuff pathology and that Ms Zaveczky’s employment did not contribute to the development of or the aggravation of her rotator cuff pathology.
It was generally accepted that Ms Zaveczky could suffer temporary increased pain in her shoulders while at work, because of her rotator cuff pathology, with the proviso that the pain was related to underlying pathology and not caused by her work activity.
The only dissenting opinion was that of Dr Bodel, who stated in his written report that he agreed that there was an ‘underlying constitutional contribution’ to Ms Zaveczky’s shoulder pathology but that work was an ‘aggravating factor’ and that ‘there is evidence of material aggravation and change in the pathology caused by the nature of the work that she was doing’.
Dr Bodel did not explain what evidence there was that there had been ‘material aggravation and change in the pathology’ and appeared to rely on Ms Zaveczky’s own narrative which has been demonstrated above as not always reliable.
At the hearing, in response to questioning by counsel for the Respondent, Dr Bodel retreated from his previously expressed opinion and accepted that Ms Zaveczky’s work duties did not cause the pathological change but persisted with his opinion that her work was still a ‘potential contributing factor to the aggravation or the material aggravation of the underlying pathology’.
Dr Bodel’s opinion appears to be based on the fact that Ms Zaveczky reported that her symptoms occurred concurrently with her work but was, in my view, unable to provide a convincing explanation as to how her sedentary work duties would have exerted sufficient force on the rotator cuff to ‘aggravate the pathology’. Also, he was unable to provide any reference to a scientific publication to support his opinion.
In my view, the overwhelming weight of the expert medical evidence supports a finding that Ms Zaveczky’s employment did not cause or aggravate her right or left shoulder rotator cuff disorder and therefore I have placed less weight on Dr Bodel’s dissenting opinion.
CONCLUSION
I am satisfied that the weight of the evidence set out above, in particular the expert medical evidence, supports a conclusion that Ms Zaveczky’s employment did not contribute, to a significant degree, to her right or left shoulder rotator cuff disorder.
I accept that Ms Zaveczky’s rotator cuff disorder presented during a period where she was working, albeit on part-time modified duties and that at times she suffered increased pain in her shoulders while at work. The fact that she experienced increased symptoms at work, is not sufficient in itself, to establish that her employment had caused her shoulder condition. There has to be evidence of ‘accompanying physiological change’.[48]
[48] Supra at 41.
It is reasonable to assume that her claimed increase in symptoms in January 2013, about three months after she had returned from 12 months leave, was related to the physiological change found on ultrasound imaging in August 2013. However, I am not persuaded that she was rendered symptomatic by her duties at work at that time.
Ms Zaveczky claims to have suffered bilateral shoulder pain for several years and on the available evidence she suffered pain both at work and when not at work. The evidence clearly supports a conclusion that in 2009, her symptoms were not related to pathology in her shoulders but to physiological change in the forearms and elbows.
On the available evidence, it is not possible to determine precisely when the pathological change in shoulders actually occurred and whether her claimed symptoms during her leave were in fact related to early rotator cuff pathology.
However, the weight of expert medical evidence clearly does not support Ms Zaveczky’s asserted mechanism of injury and tends to contradict a finding that sedentary office duties, such as keyboard and mouse work, could lead to permanent change to the underlying pathophysiological process affecting her shoulders.
On consideration of the available evidence, I am satisfied that, on the balance of probabilities, Ms Zaveczky’s employment did not contribute to a significant degree to her right or left shoulder rotator cuff disorder.
I am also satisfied that, on the balance of probabilities, Ms Zaveczky’s employment did not contribute, to a significant degree, to an ‘aggravation’ of her right or left shoulder rotator cuff disorder.
It follows that Ms Zaveczky’s bilateral shoulder disorder is not a ‘disease’ for the purposes of section 5B of the SRC Act and, therefore, not an ‘injury’ for the purposes of paragraph 5A(1)(a) of the SRC Act.
This means that Comcare is not liable to pay compensation pursuant to section 14 of the SRC Act in respect of the right or left shoulder rotator cuff disorder and, therefore, not liable to make compensation payments under sections 16, 19, 29 and 39 of the SRC Act.
REVIEWABLE DECISIONS
Before proceeding to finalising the reviewable decisions, it is relevant to consider extracts from certain decisions of the Tribunal and the Full Federal Court as follows:
·In Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, Conti J stated that ‘the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker… made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has been the subject it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT’.[49]
[49] Telstra Corporation Ltd v Hannaford [2006] FCAFC 87, [57].
·In Portors and Comcare (Compensation) [2017] AATA 2166, Deputy President Humphries stated, inter alia, as follows:
Comcare accepted liability for Mr Portors’ hernia condition in October 2002 … Comcare has satisfied the Tribunal, on the balance of probabilities, that the factual basis on which those decisions were made should now be set aside in favour of a different factual finding. The effect of reaching that state of affairs is that the Tribunal can be satisfied Mr Portors did not suffer a workplace injury in July 2002. His employment did not cause him to suffer the hernia nor did it aggravate a hernia condition. It follows that any condition arising out of hernia repair surgery cannot be an injury cannot be an injury for the purposes of the Act.[50]
·In Portors v Comcare [2018] FCA 914, Robertson J stated, inter alia, as follows:
In my opinion, the Tribunal did not err in its understanding of Hannaford. The decision stands as authority for the proposition that in relation to its decision-making under, in particular, ss 16 and 9 of the Act, the Tribunal has power to make a finding of fact contrary to a finding of fact made in an original decision under s 14 even where the s 14 decision remains in force.
There is little judicial authority on the meaning of s 4(3) of the Act. In Lang v Comcare [2007] FCA 47; 94 ALD 141, Stone J said, at [22]:
For the expanded definition of ‘injury’ contained in s 4(3) of the Act to apply, there must be three elements; the first is an initial, compensable, injury; the second is treatment for that injury; the third is further injury caused by that treatment…
In my opinion the purpose of the provision is to make it clear that an injury as a result of medical treatment shall, in the specified circumstances, be itself taken to be an injury without further resort to the definition of that word in s 5A of the Act… I therefore see no error of law in the Tribunal’s conclusions that where an applicant claims to have suffered an injury as a result of medical treatment of an injury, an application under s 54 [of] the Act is necessary. [emphasis added]…
Although I conclude that the Tribunal did not err in stating, at [96], that any condition arising in the present case out of hernia repair surgery cannot be an injury for the purposes of the Act by virtue of the absence of a workplace-derived hernia condition, I do not accept as legally correct what the Tribunal stated as a qualification to that conclusion. That qualification was that a claim for the hernia repair condition may have been successful if Mr Portors made a separate claim under s 14 for that condition… In my opinion, an applicant would have no further entitlement to the payment of compensation for an injury as a result of medical treatment of an injury where it had been found that there was no further entitlement to payment of compensation for the original injury because it was not workplace related.[51] [emphasis added]
[50] Portors and Comcare (Compensation) [2017] AATA 2166, [96].
[51] Portors v Comcare [2018] FCA 914, [26]-[31].
Application 2018/1166
·On 17 August 2017, Ms Zaveczky lodged a new claim for ‘left shoulder bursitis, tendinosis and rotator cuff tear’.
·On 18 October 2017, an authorised delegate determined that Comcare was not liable to pay compensation pursuant to section 14 of the SRC Act in respect of ‘partial-thickness supraspinatus tear of the left shoulder with bursal bunching on abduction’.
·In a reviewable decision dated 5 February 2018, an authorised delegate affirmed the determination dated 18 October 2017.
Decision: For the reasons set out above, the Tribunal finds that Ms Zaveczky’s employment did not contribute to a significant degree to her ‘partial-thickness supraspinatus tear of the left shoulder with bursal bunching on abduction’. Therefore, Comcare is not liable to pay compensation under section 14 of the SRC Act. The decision under review is affirmed.
Application 2018/6132
·In a letter dated 28 August 2018, a case manager with Allianz Australia Insurance Limited (AAIL) informed Ms Zaveczky that her request in February 2018 ‘to reactivate her claim’ will be denied because she ‘does not presently have an entitlement to compensation’.
·In a reviewable decision dated 22 October 2018, an authorised delegate affirmed the decision of 28 September 2018 which determined that as at 15 March 2016, Ms Zaveczky ‘has no present entitlement to compensation under sections 16,19, 29 and 39 of the SRC Act’ in respect of ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’.
Decision: For the reasons set out above, the Tribunal finds that the original ‘injury’ was not workplace related. Therefore, as at 22 October 2018, Ms Zaveczky had no entitlement to compensation under sections 16, 19, 29 and 39 of the SRC Act in respect of ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’. The decision under review is affirmed.
Application 2020/5994
·Following a reconsideration of its own motion in respect of a determination made on 28 October 2015 which accepted liability for ‘bursitis (left)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘bursitis (left)’.
Decision: For the reasons set out above, the Tribunal finds that Ms Zaveczky’s employment did not contribute to a significant degree to her ‘bursitis (left)’, and therefore was not workplace related. Therefore, Comcare is not liable to pay compensation under section 14 of the SRC Act. The decision under review is affirmed.
Application 2020/5997
·Following a reconsideration of its own motion in respect of a determination made on 17 March 2014, which accepted liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’. However, liability with respect to ‘aggravation of lateral epicondylitis (right)’ should remain unaffected.
Decision: For the reasons set out above, the Tribunal finds that Ms Zaveczky’s employment did not contribute to a significant degree to her ‘subacromial/subdeltoid bursitis (right)’ and ‘supraspinatus (muscle) (tendon) strain’ and, therefore, was not workplace related. Therefore, Comcare is not liable to pay compensation under section 14 of the SRC Act. The decision under review is affirmed.
Application 2020/5998
·Following a reconsideration of its own motion in respect of a determination made on 31 October 2014, which accepted liability for ‘right arthroscopic subacromial decompression’ and ‘rotator cuff debridement (and possible repair)’ in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘right arthroscopic subacromial decompression’ and ‘rotator cuff debridement (and possible repair)’.
Decision: For the reasons set out above, the Tribunal finds that Ms Zaveczky’s employment did not contribute to a significant degree to her ‘subacromial/ subdeltoid bursitis (right)’ and, therefore, was not workplace related. Therefore, Comcare is not liable to pay compensation under section 16 of the SRC Act. The decision under review is affirmed.

Application 2020/5999
·Following a reconsideration of its own motion in respect of a determination made on 13 July 2015, which accepted liability for ‘manipulation under anaesthetic and release of contracture of frozen shoulder (right)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘manipulation under anaesthetic and release of contracture of frozen shoulder (right)’.
Decision: For the reasons set out above, the Tribunal finds that Ms Zaveczky’s employment did not contribute to a significant degree to her ‘subacromial/ subdeltoid bursitis (right)’ and, therefore, was not workplace related. Therefore, Comcare is not liable to pay compensation under section 16 of the SRC Act. The decision under review is affirmed.

I certify that the preceding 242 (two hundred and forty two) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Senior Member

..................................[sgd]......................................
Associate
Dated: 9 December 2020

Dates of hearing: 21, 22 and 23 October 2020

Counsel for the Applicant: Mr D Steiner

Solicitors for the Applicant: Ms S Mathew, Gerard Malouf & Partners

Counsel for the Respondent: Mr P Woulfe

Solicitors for the Respondent: Ms V Ginnane, Moray & Agnew Lawyers

Dates of hearing:	21, 22 and 23 October 2020
Counsel for the Applicant:	Mr D Steiner
Solicitors for the Applicant:	Ms S Mathew, Gerard Malouf & Partners
Counsel for the Respondent:	Mr P Woulfe
Solicitors for the Respondent:	Ms V Ginnane, Moray & Agnew Lawyers