Zenelovski and Comcare (Compensation)

Zenelovski and Comcare (Compensation) [2017] AATA 188 (17 February 2017)
Division:GENERAL DIVISION
File Numbers: 2014/6304 & 2014/6305
Re:Karolina Zenelovski
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Miss E A Shanahan, Member
Date:17 February 2017
Place:Melbourne

The Tribunal affirms the decisions under review.
[sgd]........................................................................
Miss E A Shanahan, Member
WORKERS COMPENSATION – De Quervain’s tenosynovitis of the right wrist and secondary sprains and strains of carpometacarpal (right thumb) – liability for osteoarthrosis of metacarpocarpal joint of right thumb denied – conflicting medical reports and opinions – multiple interventions and treatment of right thumb condition - De Quervain’s tendonitis diagnosed definitively 2016 and treated surgically without benefit – no significant contribution by employment – decisions affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Commonwealth v Beattie (1981) 35 ALR 369
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263
REASONS FOR DECISION
Miss E A Shanahan, Member
17 February 2017

Mrs Zenelovski applied to the Administrative Appeals Tribunal (AAT) on 8 December 2014 for review of the decision of 28 November 2014, affirming the original two determinations. The reviewable decision, made by a senior review officer of Comcare, related to claims under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Mrs Zenelovski’s application in relation to permanent impairment under s 24 and s 27 of the SRC Act had been denied on 15 August 2014 and subsequently affirmed. The determination of 12 August 2014 had found no present entitlement to compensation under s 16 and s 19 of the SRC Act, as based on the medical evidence, Mrs Zenelovski no longer suffered the effects of the compensable condition of De Quervain’s tenosynovitis and the medical evidence was that her carpometacarpal condition was a degenerative disease with no relation to employment. The later determination of 15 August 2014 in relation to permanent impairment was denied on the basis that given there was no entitlement in relation to the previously claimed conditions, there was no entitlement to compensation for permanent impairment.
Mrs Zenelovski’s original claim for compensation had been lodged on 15 September 2009, the claim relating to the conditions of bilateral carpal tunnel syndrome and tendonitis of both wrists. Liability arising from these claims was denied and Mrs Zenelovski had eventually applied to the AAT for further review which resulted in the Consent Agreement of 21 March 2011, where the Tribunal determined that Comcare as the insurer to Mrs Zenelovski’s employer, the Department of Defence, was liable to compensate Mrs Zenelovski for the De Quervain’s tendonitis affecting the right wrist. The Tribunal rejected the claim for osteoarthrosis of the first metacarpocarpal joint of the right thumb and the bilateral carpal tunnel syndrome.
Mrs Zenelovski was represented by Ms Angela Malpas of counsel, instructed by Robinson Gill solicitors, and the Respondent by Mr John Wallace of counsel, instructed by the Australian Government Solicitors. The Tribunal was provided with the documentation under s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents, Exhibit R1). The Applicant tendered several reports contained in a tribunal book which was assigned Exhibit A4. Mrs Zenelovski, the treating general practitioner Dr Terrence Brophy and Mr James Thomas gave evidence on behalf of the applicant and Mr Murray Stapleton, hand surgeon, gave evidence for the Respondent.
BACKGROUND TO THE APPLICATION
Mrs Zenelovski had joined the Department of Defence at the age of 18, as an administrative service officer whose duties were the processing of purchase orders on a computer. She worked seven and a half hours a day, five days per week. Some three months later she was made permanent and was transferred to a typing pool in Central Army Records preparing certificates of service using electronic typewriters. Thereafter, Mrs Zenelovski’s higher duties included searching military records using both computer and micro imaging systems.
Although, from 1994 onwards Mrs Zenelovski’s duties were varied they still involved use of a computer with typing and mouse activities. She frequently worked overtime and by the late 1990s was averaging six hours per week overtime over a six month period. From about 1999 she noticed a constant ache in both wrists. In 2009 she took long service leave in July and some three weeks later noted onset of severe pain in both wrists. This was associated with neural symptoms, in particular numbness and tingling in the fingers.
Mrs Zenelovski’s general practitioner Dr Terrence Brophy provided a report confirming her diagnosis of tendonitis of the wrist without identifying which tendons were involved and bilateral carpal tunnel syndrome. These were said to have been aggravated by repetitive work duties. Nerve conduction studies confirmed the diagnosis of bilateral carpal tunnel syndrome. Mrs Zenelovski underwent bilateral carpal tunnel release, the operation being performed by Associate Professor Peter Nottle on 22 January 2010.
The Department of Defence had by that time rejected liability for the carpal tunnel syndrome and nonspecific tendonitis based on medical opinion, particularly that of the occupational physician Dr Ramage and a detailed report of Mrs Zenelovski’s actual duties in the Department of Defence provided by her supervisor. The latter showed that only 40 per cent of her time was spent in computer or typing activities. The primary determination was confirmed on review on 27 February 2010.
Mrs Zenelovski’s nerve compression symptoms were completely resolved by the surgery but the pain in her wrists, more particularly the right, persisted post-operatively. She did return to work on 23 March 2010 on restricted duties having been absent for a period of six months on long service leave, sick leave and annual leave. As her symptoms of wrist pain persisted Associate Professor Nottle sought the opinion of Dr Geoffrey Markov rheumatologist. Dr Markov undertook detailed investigation of Mrs Zenelovski’s wrist pain and commenced treatment with the anti-inflammatory medication Voltaren which provided significant improvement.
While an ultrasound showed some thickening of the tendon sheaths of abductor pollicis longus (APL) and extensor pollicis brevis (EPB) tendons suggesting De Quervain’s tenosynovitis, Dr Markov was of the opinion that the clinical features of that condition were equivocal. However, it was reasonable to make that diagnosis. With that in mind he performed steroid and local anaesthetic injections into the tendon sheaths with benefit lasting for only two weeks. Repeat injections were also short lived. Blood tests had revealed raised inflammatory markers which are seen in active arthritis but these were thought to be inconsistent with the clinical findings. Despite physiotherapy and wrist splinting, Mrs Zenelovski’s symptoms were more pronounced than Dr Markov expected for De Quervain’s tendonitis or mild osteoarthritis of the right thumb that had been shown on x-ray. In October 2010 Dr Markov referred Mrs Zenelovski to Mr James Thomas hand surgeon.
Mr Thomas arranged for a Magnetic Resonance Imaging (MRI) scan of Mrs Zenelovski’s right hand which apparently only revealed some swelling around the first carpometacarpal joint of the right thumb. He therefore advised conservative treatment with splinting and anti‑inflammatory medication as required. On review in early 2011, he was of the opinion that she had had an excellent response to the anti-inflammatory medication although she remained exquisitely tender in the right thumb proximal joint. He was of the opinion that any possible De Quervain’s tendonitis had well and truly settled.
This opinion was supported by the MRI of the right wrist which stated there was minimal oedema of extensor carpi radialis longus and brevis tendon sheaths (not the APL and the EPB tendon sheaths).
Mrs Zenelovski continued her claim for compensation by lodging an application with the AAT. Based on medical reports, some of which were conflicting, the parties reached an agreement which was adopted by the Tribunal under which Comcare accepted liability under s 14 of the SRC Act for the condition of De Quervain’s syndrome of the right wrist deemed to have been sustained on 16 August 2009 and also liability under s 19 of the SRC Act for incapacity for work from 1 September 2009 to 29 October 2009. Comcare was not liable in respect of the carpal tunnel syndrome (bilateral).
On 28 June 2012 Comcare accepted liability for the injury sprains and strains of the right thumb, based on opinion that De Quervain’s tenosynovitis was affecting the base of the right thumb.
Mrs Zenelovski has never returned to normal hours of work and after each intervention be it surgery or injection of steroids into various joints, she has been reduced to working six hours per day, three days of the week. Despite Mr Thomas’s desire to avoid surgical intervention, Mrs Zenelovski’s symptoms of pain, tenderness and limitation of movement were such that he recommended arthroscopy of the right basal thumb joint. This was performed in March 2011 without significant symptomatic relief. Eventually it was recommended that she undergo pyrodisk arthroplasty of this joint. This was undertaken on 18 September 2012, followed by intensive hand therapy. The operative report of 18 September 2012 describes the actual procedure but does not record the findings at operation. Mrs Zenelovski was off work for some two months and continued with her hand therapy as well as wearing a splint on the wrist for a period of four weeks.
When assessed by a rehabilitation exercise physiologist on 11 January 2013, Mrs Zenelovski still complained of right thumb soreness, stiffness and swelling with reduced grip strength and the inability to make a fist with her right hand. She had a reduced range of movement in the carpometacarpal joint of the right thumb and in addition complained of constant aching pain in her fingers. She was taking the narcotic Endone as required but used mainly Panadol for pain relief and iced her wrist every night.
Mrs Zenelovski’s anti-inflammatory medications were ceased despite providing some relief in her pain when she was diagnosed with thrombocytopenia in early 2013. Following the surgical intervention Mrs Zenelovski returned to working six hours per day, three days per week. Once more her duties were modified to limit repetitive tasks.
Improvement after this arthroplasty was short lived with pain recurring at the basal joint. Mrs Zenelovski had continuing pain management treatment, hand therapy and regular reviews by Mr Thomas. Mr Thomas was of the opinion that Mrs Zenelovski’s pain, that is the symptom of pain, was aggravated and exacerbated by her administrative duties. As of 1 July 2014 Mr Thomas considered Mrs Zenelovski’s diagnosis to be osteoarthritis of the right thumb carpometacarpal joint with a past history of bilateral carpal tunnel syndrome and De Quervain’s tenosynovitis, both of which were no longer present.
Comcare sought the opinion of Mr Murray Stapleton, hand surgeon. Having obtained a detailed history and having examined Mrs Zenelovski, Mr Stapleton made a diagnosis of previous carpal tunnel syndrome and basal joint arthritis of the right thumb. He considered both of these conditions to be genetically determined and in no way related to employment. The bilateral carpal tunnel syndrome had completely resolved following surgical release but in Mr Stapleton’s opinion the right thumb basal joint arthritis needed further attention which he felt should be fusion of the joint in order to control the pain. He considered Mrs Zenelovski fit for full time light duties with restrictions involving only her right hand, these being a limitation of pushing, pulling, gripping and lifting weights in excess of five kilos. He concluded that there was no evidence of any form of tendonitis.
Mrs Zenelovski submitted her claim for permanent impairment on 14 July 2014. Based on the report of Mr Stapleton, Comcare made a determination on 12 August 2014 on the evidence before them that Mrs Zenelovski did not presently suffer from De Quervain’s tenosynovitis and that the previously accepted sprains and strains of the carpometacarpal (right thumb) was a degenerative condition with no direct relationship to Mrs Zenelovski’s employment. As a result, she had no entitlement to the payment of medical expenses under s 16 of the SRC Act or to incapacity payment under s 19 of the SRC Act. On 28 November 2014 a senior review officer (SRO) confirmed the determination.
On 8 December 2014 Mrs Zenelovski lodged an application to the AAT for further review of the decisions of Comcare relating to s 16 and s 19. Mrs Zenelovski had been receiving partial incapacity since the end of 2014, she having resumed work seven hours per day, four days per week. She had also received a part pension as a result of a superannuation claim.
More recent reports have been received from the treating hand surgeon, Mr James Thomas noting that ultrasounds of the wrists performed earlier in 2015 had demonstrated evidence of right De Quervain’s tenosynovitis and left flexor carpi radialis tenosynovitis. Mrs Zenelovski had subsequently undergone an injection of cortisone and local anaesthetic into her right De Quervain’s tendons with what was described as a dramatic improvement in her pain with 90 per cent relief of her symptoms. Apparently, the pain recurred as on 17 September 2016. Mr Thomas advised that he had operated upon Mrs Zenelovski on 19 February 2016 performing a tenosynovectomy of the De Quervain’s tendons.
When last seen on 5 April 2016 she was assessed as having a good improvement in her pain levels. However, she continued to suffer from pain related to her right thumb. Mr Thomas considered it might be necessary in the future to remove the pyro-carbon arthroplasty and perform what is called a suspension-plasty.
EVIDENCE BEFORE THE TRIBUNAL
Mrs Zenelovski
Mrs Zenelovski confirmed that the content of her statement that her right bilateral wrist pain had become severe in 2009 when she was on leave. In her opinion the arthroplasty had been of no benefit whatsoever and the surgery undertaken in February 2016 had helped a little. She said she was obliged to keep working because of financial pressures on the family.
Since returning to work the nature of her duties has changed and she says she is now involved predominantly in the preparation of eulogies. This involves conducting research both on the computer and paper files, some photocopying and the use of a microfiche. Most of her filing work is paper and the use of the microfiche has fallen to about 10 per cent of her work. Currently her pain was constant and did not decrease when she was not using a keyboard.
When challenged by Mr Wallace that her supervisor Mr Couper had reported that a system of rotation of duties resulting in a decrease of computer work by 50 per cent had been instituted in May 2007, Mrs Zenelovski said she could not recall the timing of the reduction in duties. She did, however, agree that with current requirements it was only necessary to type in one to two paragraphs because of the provision of templates. She described her pain in the wrist as being across the dorsum of the wrist from the styloid process of the radius, which is on the lateral border of the forearm, to the medial boarder of the forearm, that is, to the ulna. Mrs Zenelovski is no longer required to use a mouse on her computer.
Mrs Zenelovski said that she had altered the way she conducted her household tasks in order to protect her right hand. At the time of the hearing she was taking only occasional analgesics in the form of Panadol, six tablets per week and Panadeine up to two tablets per week.
Dr Terence Brophy, general practitioner
Dr Brophy was Mrs Zenelovski’s general practitioner and the notes provided by a third party indicate, that he saw Mrs Zenelovski on a regular basis between March 2005 and early 2010. He had seen her on 7 April 2016 for the purpose of providing an up to date report and in this report he confirmed that she had a chronic right wrist injury (De Quervain’s tendonitis) for which she had several surgical procedures. He considered the injury to now be permanent and her incapacity related to the wrist such that she would never be able to return to her pre-injury hours.
In cross-examination Dr Brophy confirmed that he did not have access to the past medical records and these were his recollections. He denied explaining to Mrs Zenelovski that the onset of her symptoms had occurred while on leave because her hands were more relaxed as such a comment did not make sense. Dr Brophy was not fully aware of Mrs Zenelovski’s work duties although he understood that her pre-injury duties had been more repetitive than those she now undertook.
Mr James Thomas, treating hand surgeon
Mr Thomas essentially confirmed the contents of his earlier reports which have been covered under background to the application. He agreed that prior to the arthroplasty in early 2013, there had been no evidence of De Quervain’s disease on any examination that he had conducted and the MRI scan had confirmed that. When he had re-evaluated Mrs Zenelovski in September 2015, he considered there were signs of De Quervain’s tenosynovitis and therefore arranged a diagnostic cortisone injection into the tendon sheaths of APL and EPB.
On several occasions Mr Thomas stated that the arthritis of the basal joint of the right thumb and the De Quervain’s symptomatology exacerbated and aggravated Mrs Zenelovski’s pain and as a result she was better when she was on holidays or had a reduced workload. He stated work did not change the underlying pathology. It was however a significant contribution to her symptomatology. He considered Mrs Zenelovski unlikely to improve and further surgery remained a possibility.
In cross-examination Mr Thomas confirmed that the MRI scan was the best diagnostic tool for De Quervain’s disease. He had not seen the ultrasound of June 2010 nor had he seen a report of this investigation. He again repeated that repetitive work worsened pain but did not use the word aggravation in terms of changes to the underlying pathology. He agreed that the arthroplasty had not been effective in terms of control of the right thumb pain and in response to a question that I posed as to whether surgery to the carpometacarpal joint of the thumb can cause De Quervain’s tenosynovitis or tendovaginitis, he responded that yes it does, as both tendons were intimately related to and rode over the joint during their actions.
Mr Murray Stapleton, hand and plastic surgeon
Mr Stapleton provided two reports at the request of Comcare. Mr Stapleton is a hand surgeon with plastic surgical qualifications. In his reports Mr Stapleton had provided the opinion that there was no scientific evidence to support a causal relationship between either De Quervain’s tendovaginitis or degenerative osteoarthritis of the basal thumb joint, with repetitive hand movement, both conditions being more common in middle-aged women and of unknown etiology. He confirmed his opinion that there was no relationship between Mrs Zenelovski’s computer based work in the Department of Defence and the development of her bilateral carpal tunnel syndromes. Computer work did not involve other than minimal movement in the basal joint of the thumb and given the close anatomical relationship of the De Quervain’s tendons to this joint, a similar argument applied to the De Quervain’s.
In his examination-in-chief Mr Stapleton confirmed that in his examination of Mrs Zenelovski in 2014 he had found no evidence of De Quervain’s disease. Finklestein’s test had been negative. Mr Stapleton confirmed his opinion that there was no causal contribution as the underlying changes in the thumb were of a degenerative nature. However, pain would be increased in intensity by movement. This was purely a symptomatic change and not a change of the underlying pathology. Mr Stapleton opined that Mrs Zenelovski would ultimately require fusion of the basal joint of her right thumb in order to control the pain. He regarded Mrs Zenelovski as capable of performing other types of work that did not involve keyboarding.

I posed the same question to Mr Stapleton as I had to Mr Thomas, as to whether the degenerative osteoarthritis and the subsequent surgical treatment of that particular joint could give rise to De Quervain’s tendovaginitis given the close anatomical relationship of these tendons to the thumb joint. He answered that yes, this was very possible.
DOCUMENTARY EVIDENCE
There is a vast amount of documentary evidence commencing from 2009 up until mid‑2016. That provided by the treating Doctors Brophy and Thomas and the expert opinion of Mr Stapleton had been addressed in their oral evidence. Regrettably, Dr Brophy did not have access to any of his previous notes. On 16 March 2011 Dr Brophy had provided a diagnosis of De Quervain’s disease, right wrist and degenerative change right first carpometacarpal joint. These changes he attributed to the long term repetitive nature of Mrs Zenelovski’s work duties.
The earlier reports of the occupational health physicians, Dr Ramage and Dr Rowe and Dr Ken Muirden along with the short report to the Associate Professor Peter Nottle all related to the undisputed diagnosis of bilateral carpal tunnel syndrome for which Mrs Zenelovski underwent carpal tunnel release in January 2010. While several of these experts had commented on the presence of minor tendonitis in the right wrist on ultrasound and these minor changes did involve what is referred to as De Quervain’s tendons that is, APL and EPB, a subsequent MRI of the wrist which it was agreed was a far more reliable investigation revealed no evidence of De Quervain’s disease.
Dr Damian Ireland, hand surgeon, had reported on 28 February 2013, that Mrs Zenelovski’s bilateral carpal tunnel syndrome was completely resolved post- surgery and that she had right thumb dysfunction following surgical treatment for osteoarthritis of the basal joint of the right thumb. He considered her to be able to work full time in modified duties.
Dr Cheesman, occupational health physician, reported in April 2015 that he had difficulty differentiating between possible diagnoses of osteoarthritis of the basal joint of the right thumb and De Quervain’s disease as the physical signs and even the special tests for De Quervain’s could be positive in both of these conditions. He considered Mrs Zenelovski fit for full time alternative duties in what he described as a left hand loading occupation.
Mr James Thomas, the treating hand surgeon gave evidence before the Tribunal as reported above. The documentation accompanying his reports, which include his clinical notes and two operation reports, does not at any time describe the findings at operation and only describe the procedure performed. There is therefore no description of any changes or abnormalities visualised at operation.
The opinion of Mr Rodney Simm, orthopaedic surgeon was provided to the applicant and dated 23 April 2015. Mr Simm’s report and opinion is the most detailed expert opinion received. It included a very detailed history, consideration of all interventions as well as Mrs Zenelovski’s current status. Mr Simm found Mrs Zenelovski’s pain to be centred over the dorsum of the carpometacarpal joint of the right thumb and extended along the radial side of the forearm almost to the elbow. The pain ranged between 5/10 and 10/10 on the visual analogue pain scale if Mrs Zenelovski indulged in repetitive movement or strenuous tasks using her thumb. Stirring or gripping caused severe pain. Similar, but lesser symptoms were described in the left hand.
On examination, Mr Simm did not identify any muscle wasting of the forearms or hands and the passive movements of the right hand were not painful. There was no obvious abnormality in terms of swelling or deformity of the thumb or fingers in the right hand, active and passive movements of the right thumb were painful at the base. There was said to be mild tenderness over the APL and the EPB tendons to the right thumb but the so called diagnostic Finkelstein and Eichoff tests for De Quervain’s disease were negative. There was no residual evidence on examination of carpal tunnel syndrome in either wrist.
Examination of the left hand and wrist did not reveal any abnormality except for tenderness over the dorsum of the basal joint of the left thumb. On the left side the Finkelstein and Eichoff tests were negative. Grip strength was greater on the left than the right.
Mr Simm opined that there was limited evidence of right De Quervain’s tendovaginitis. He explained that several reports had referred to the condition as tenosynovitis which was not correct as De Quervain’s was inflammation of the actual tendons not the tendon sheath. He noted that the MRI of the right wrist on 30 November 2010 showed no evidence of De Quervain’s disease. He agreed with the opinion of Mr Stapleton that repetitive operation such as using a keyboard could increase pain in relation to the degenerative osteoarthritis of the first basal thumb joint and this increase of symptomatology should abate entirely outside of the workplace although, Mrs Zenelovski experienced the same symptoms while performing her household duties.
Mr Simm referred to the American Medical Association Guides to the Evaluation of Disease and Injury Causation that had concluded that there is insufficient epidemiological evidence to regard keyboard activities as an occupational risk factor for osteoarthritis of the carpometacarpal joint of the thumb.
Mr Simm expected Mr Zenelovski’s symptoms of pain while operating keyboards would persist and that she would continue to work through the symptoms, given her financial reasons for doing so. He concluded that the right thumb symptomatology was due to degenerative changes unrelated to work and did not find any evidence of De Quervain’s disease.
RELEVANT LEGISLATION
Comcare has accepted liability under s 14 of the SRC Act as of 1 September 2009 as determined by the AAT on 21 March 2011, the Tribunal having adopted the Consent Agreement of the parties. Liability was limited to De Quervain’s tenosynovitis of the right wrist and specifically excluded the applicant’s bilateral carpal tunnel syndrome. On 28 June 2012 the respondent accepted liability under s 14 of the SRC Act for the condition of sprains and strains, carpometacarpal (right thumb).
On 28 November 2014 in accordance with s 62 of the SRC Act, Comcare reviewed its earlier decisions. Section 62(1)(a) and (b) state:
62 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.
As a result of such a reconsideration, liability under s 16 and s 19 was denied. Section 16 of the SRC Act states:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Note: Compensation is not payable under this subsection in relation to certain defence related claims (see Division 2A of Part XI).
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
Section 19 provides for compensation for injuries resulting in incapacity and states:
19 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.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
SUBMISSIONS
Ms Malpas submitted that Mrs Zenelovski, having done the same work for 20 years, involving constant use of her hands and a keyboard be it a typewriter or a computer, had developed De Quervain’s tenosynovitis or tendovaginitis which had been accepted as being caused by her work activities. The later claim for strain or sprain of the right thumb had also been accepted as work caused. Both conditions were injuries arising out of the employee’s employment, as provided by s 5A of the SRC Act or alternatively being an aggravation of an ailment contributed to to a significant degree by the employee’s employment (s 5B of the SRC Act).
Ms Malpas contended that the Tribunal should prefer and accept the opinions of Dr Brophy and Mr Thomas the treating hand surgeon, both of whom considered the conditions to have been aggravated by the work undertaken by Mrs Zenelovski, over a total period of 27 years.
Ms Malpas addressed the treatment received by Mrs Zenelovski and in particular the operations she had undergone with only minor relief of her symptomatology. She submitted that it was agreed by the parties that Mrs Zenelovski was partially incapacitated for work and that this partial incapacity was likely to persist. It was highlighted that Mrs Zenelovski now only works 56 to 58 hours per fortnight and receives a partial incapacity pension in accordance with her superannuation fund provisions.
Mr Wallace addressed the medical evidence and the varying diagnoses in the early stages of Mrs Zenelovski’s presentation. At the time she had lodged a claim for bilateral carpal tunnel syndrome there had been no diagnoses proffered from either Associate Professor Nottle or Dr Brophy regarding the existence of basal thumb joint osteoarthritis or De Quervain’s disease. Following the successful surgical treatment of the nerve conduction proven bilateral carpal tunnel syndrome, Mrs Zenelovski has never returned to her normal hours or the duties she did prior to commencing long service leave in July 2009.
Mr Wallace reiterated the evidence of Mr Couper, Mrs Zenelovski’s supervisor, who had outlined that her duties did not involve constant use of a keyboard and mouse and that at the time she had gone on long service leave she was in fact subject to a structured revolving roster with only 40 per cent of her time spent in typing duties.
Having outlined the medical evidence, Mr Wallace submitted that the opinions of the treating surgeon Mr Thomas, the orthopaedic surgeon Mr Simm and the hand surgeon Mr Stapleton are all to the same effect, that there was no evidence of De Quervain’s disease until late in 2015 at which time Mrs Zenelovski’s duties were limited to light duties requiring little in the way of typing. All three reporting surgeons expected the basal thumb joint osteoarthritis to deteriorate despite the surgery already undertaken and regarded this as the major cause of her symptomatology which had in Mr Thomas’s opinion been exacerbated and aggravated by her employment.
It was pointed out that Mr Thomas had agreed that all Mrs Zenelovski’s symptoms relating to De Quervain’s disease could have been due to the underlying pathology in the thumb joint which is not an accepted condition. Mr Wallace contended there was no evidence whatsoever to suggest that Mrs Zenelovski’s employment had accelerated or impacted on the underlying pathological changes relating to the degeneration in the first carpometacarpal joint of the right hand.
As Mrs Zenelovski was working 58 hours per fortnight and receiving a superannuation part pension Mr Wallace contended she had not suffered any financial loss. However, should the Department of Defence retire her on medical grounds she would be in receipt of lesser compensation and of lesser superannuation payment.
In response Ms Malpas submitted that the Tribunal should find that there had been aggravation of the underlying condition by Mrs Zenelovski’s employment and had been attested to by medical evidence diagnosed initially as carpal tunnel tendonitis and in addition strains and sprains of the first carpometacarpal joint. On this basis cessation of liability had been incorrectly determined.
Ms Malpas addressed the problems that might arise in relation to the payment of a partial incapacity superannuation entitlement should the Tribunal find that cessation of liability as of 12 August 2014 was the correct and preferable decision.
TRIBUNAL’S DELIBERATIONS
The determination of this application rests primarily on the medical evidence which regrettably is fraught with inconsistencies and contradictions, particularly with respect to the medical terminology used.
The AAT in its decision of 21 March 2011, adopted Consent Orders agreed to by the parties wherein liability under s 14 for Mrs Zenelovki’s claimed conditions was limited to De Quervain’s tenosynovitis of the right wrist and specifically rejected her claim for bilateral carpal tunnel syndrome.
For reasons that are not clear to me, a delegate of Comcare on 8 April 2011 amended the accepted condition of De Quervain’s tenosynovitis to tenosynovitis hand and wrist (right) (wrist only). The explanation given was that the condition had been classified in accordance with the International Classification of Diseases and Injuries (ICD-9-CM 2^nd Edition). It was pointed out that the wording of the determined condition may differ from the wording as described by Mrs Zenelovski’s doctors and in the AAT decision.
The International Classification of Diseases, certainly as of 2016, provides for the classification of radial styloid tenosynovitis (De Quervain’s tenosynovitis) at M65.4. Thus, it would appear that an incorrect ICD classification was made on 8 April 2011. The Tribunal’s determinations have been made on the basis that the correct diagnosis or the accepted condition in the AAT decision of 21 March 2011 was De Quervain’s tenosynovitis of the right wrist and should not have been altered as it was but ascribed the correct ICD classification.
De Quervain’s disease or tenosynovitis as it is now more commonly known was described in 1895 by the Swiss surgeon Fritz De Quervain. As reported by De Quervain it involves what has variously been called tenosynovitis, tendovaginitis, tenovaginitis and a bevy of non‑medical terminology such as texting thumb, washer-woman’s sprain and mother’s wrist. It involves two tendons namely, APL and EPB. These two tendons are in intimate apposition with the styloid process of the radius and the first metacarpocarpal joint of the thumb (also referred to as the basal thumb joint). None of the other tendons of the wrist are related anatomically to the styloid process and the basal joint of the thumb. (Gray’s Textbook of Anatomy).
It is the intimate relationship between these tendons and the basal joint of the thumb which has created much of the dilemma relating to the exact diagnosis in relation to Mrs Zenelovski’s right wrist pain which she has indicated is predominately over the dorsum of the wrist and delineated as being from the styloid process of the radius to the medical border of the ulna.
Several of the reports from treating doctors’ and expert medical occupational physicians and rheumatologists do not define what they understand De Quervain’s synovitis to be in terms of which tendons are involved. In general the hand surgeons who have reported, Mr Thomas, Mr Ireland and Mr Stapleton and the orthopaedic surgeon Mr Simm have confirmed that they are addressing changes in the tendons of APL and EPB of the right forearm and hand.
There are several radiological reports referring to tendonitis unrelated to these two tendons. For example, the ultrasound of the 18 June 2014 reports mild tenosynovitis of extensor carpi radialis longus. In a report of 28 October 2009 Dr Brophy spoke of tenosynovitis bilaterally as evidenced by local tenderness in the extensor group of tendons to the level of the elbow but did not nominate which tendons were involved. It is noted that the extensor tendon origin at the lateral epicondyle does not give rise to either APL or EPB (Gray’s Textbook of Anatomy).
Similarly, Dr Ramage occupational physician wrote of his clinical finding of tenderness of extensor pollicis longus of both thumbs when he examined Mrs Zenelovski on 24 May 2010. These are not the tendons involved in De Quervain’s disease. In contrast, Drs Rowe and Muirden both identified the tendons which they believed to be involved correctly in terms of them being APL and EPB.
The predominant diagnosis following Mrs Zenelovski’s development of severe paraesthesia in the form of pins and needles in both hands whilst on long service leave was bilateral carpal tunnel syndrome, which was effectively treated surgically by Associate Professor Nottle. However, three months after surgery when wounds were all healed and there was no longer any evidence of median nerve compression, Mrs Zenelovski complained to him of now experiencing pain in the dorsum of both wrists. Associate Professor Nottle could not find any evidence on examination to enable the making of a diagnosis and for this reason referred Mrs Zenelovski to Dr Markov, a rheumatologist.
Dr Markov performed a bevy of investigations including an ultrasound of the wrist which suggested minor degrees of De Quervain’s tenosynovitis. Despite this radiological finding he did not consider the clinical presentation to fit with this diagnosis. He eventually determined that there was no evidence of synovitis or tendonitis and that Mrs Zenelovski was tender in all joints of her hands (report of 3 May 2010). Dr Markov then referred Mrs Zenelovski to Mr Thomas who made a diagnosis of De Quervain’s tendonitis and right thumb carpometacarpal joint inflammation for which he prescribed splinting of the right wrist. This diagnosis was rescinded when it was excluded by an MRI of the right wrist. The MRI showed only minor oedema of the first metacarpocarpal joint and two ganglions, one on the volar aspect of the wrist and one on the dorsal aspect related to the scapho‑lunate ligament. The MRI negated the findings of the ultrasound of 3 June 2010 showing De Quervain’s tenosynovitis or alternatively the condition had resolved in the five month interval between the imaging tests.
In relation to the current diagnosis of right thumb basal joint degenerative osteoarthritis and its treatment, there is limited radiological evidence and regrettably Mr Thomas in his several operative reports does not include what is usually termed operative findings. Thus we have no description of the changes he visualised at the arthroscopy, at the arthroplasty or at the tenosynovectomy and De Quervain’s release performed on 19 February 2016. Mr Thomas referred to the ultrasound of the right wrist performed on 12 February 2015, which was reported as showing very mild De Quervain’s tenosynovitis and moderate first carpometacarpal joint degenerative arthritis.
The objective evidence of De Quervain’s disease has fluctuated over the passage of time and radiologically has never been described as more than mild. Objective evidence with respect to some movements and tenderness on examination have similarly fluctuated as has the radiological appearance of the basal joint of the right thumb ranging from mild oedema in 2011 to moderate degenerative osteoarthritis in February 2015.

In 2009 and 2010 all reporting medical practitioners agreed that Mrs Zenelovski had bilateral carpal tunnel syndrome which Dr Brophy, the treating general practitioner considered to have been contributed to by Mrs Zenelovski’s work duties. Doctors Ramage, Muirden and Markov negated any such contribution as did Mr Stapleton and Mr Simm some years later. Clearly Comcare relied on the medical evidence available at the time of the claim lodgement for bilateral carpal tunnel syndrome and tendonitis not specified, in rejecting the carpal tunnel claim.
Opinion as to whether the tendonitis reported and claimed by Mrs Zenelovski in 2009 was De Quervain’s tenosynovitis and its contribution to any incapacity for work in 2009/2010 is unclear. Dr Muirden determined there was tendonitis but it did not incapacitate Mrs Zenelovski for work; Dr Ramage did not find any evidence of the condition but Dr Rowe did. It was agreed by all that the condition was age related. Dr Markov who treated and investigated Mrs Zenelovski in 2010 while noting mild De Quervain’s tendonitis (APL and EPB tendons) on ultrasound was not convinced on clinical examination that this diagnosis was indicative of significant disease. The treating surgeon Mr Thomas was quite clear in his reports and his evidence that he did not detect any clinical evidence of De Quervain’s disease until early 2015. Mr Thomas had attributed the symptomatology of the right basal base of the thumb to degenerative osteoarthritis, which is not an accepted compensable condition.
The disparity of opinion is regrettable but illustrates what Mr Simm explained in his report as the overlapping of symptoms and signs of De Quervain’s and basal joint osteoarthrosis of the thumb. The objective findings can be identical and when both conditions are potentially present it can be impossible to differentiate between the two. There is no dissenting medical opinion as to the nature of Mrs Zenelovski’s right thumb pathology it being agreed that it is a degenerative osteoarthritic condition more common in middle aged women but also seen in association with pregnancy and childbirth. While it has been suggested there may be a hormonal basis to the condition, this is not proven.
The issue for the Tribunal is whether Mrs Zenelovski’s thumb basal joint pathology has been aggravated to a significant degree by her employment. In relation to the De Quervain’s tenosynovitis a similar issue arises but also a further issue as to whether this condition has resolved and was no longer symptomatic when Comcare made the reviewable decision.
Mr Ireland and Mr Simm had attributed Mrs Zenelovski’s symptoms and work restrictions to the degenerative osteoarthrosis of the right thumb basal joint and do not accept the diagnosis of De Quervain’s tenosynovitis. Mr Stapleton and Mr Thomas have opined that the De Quervain’s disease diagnosed in late 2015 was possibly, if not probably, secondary to the thumb pathology and previous surgical intervention given the intimate anatomical relationship of APL and EPB to this joint.
All the experts and the treating hand surgeon have stated that Mrs Zenelovski’s symptoms have been aggravated or exacerbated by her work duties (Doctors Ramage, Rowe, Cheesman and Mr Thomas, Mr Stapleton and Mr Simm). None have posited a change in the underlying pathophysiology in the De Quervain’s tendons due to employment duties. They have used the terms aggravated and/or exacerbated, but not caused. Mr Simm and Mr Stapleton have specifically said there is no underlying pathology change and Dr Cheesman specifically stated the Mrs Zenelovski’s work duties will not cause damage or harm but may provoke symptoms.
The terms exacerbation and aggravation are commonly used in medicine. Aggravation is derived from the Latin aggravatus – meaning made heavy (Oxford Dictionary). Both the Oxford and Macquarie Dictionaries define exacerbation as either an increase or aggravation using the example of severity of symptoms such as pain or an aggravation. Section 4 of the SRC Act does not define aggravation other than to state it includes acceleration or recurrence, the latter terms not being defined.
The Tribunal cannot find any statement in the medical reports that the reporting doctors consider an aggravation to be anything other than an increase in the severity of the symptoms on performing work duties and her household tasks. This does not denote a change in underlying pathology.
In his submission Mr Wallace cited the Full Court of the Federal Court decision in Commonwealth v Beattie (1981) 35 ALR 369 at 378 where per Evatt and Sheppard JJ, the example was given of:
... A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury.
The evidence in Mrs Zenelovski’s case is that certain activities, both work-related and household duties give rise to an increase in the symptomatology of wrist pain, localised to the base of the right thumb. There is no evidence that there has been any change or acceleration or contribution causally to the underlying degenerative process.
The Tribunal is of the opinion that the Full Court of the Federal Court decision in Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263 is relevant in this matter. Heerey and Dowsett JJ said:
[57] ... 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 (here, of course, Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. …
and concluded at paragraph [59];
I would therefore conclude, contrary to the decision of the primary judge,that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:
(i)to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii)to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii)to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
and Heerey J added in paragraph [8]:
The text, structure and underlying policy of the SRC Act do not suggest that a determination under s 14 permanently enshrines every finding of fact on which the determination was based. …
and at paragraph [10];
As Conti J points out (at [57]), the SRC Act allows for progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen. This is in the interests as much of employees as employers.
Based on the evidence before the Tribunal, Mrs Zenelovski’s major pathology is the degenerative osteoarthritis of the first metacarpocarpal joint of her right thumb, a medical condition for which liability has not been accepted. The acceptance of the condition sprains and strains of the first metacarpocarpal joint of the right thumb does not equate with a diagnosis or degenerative osteoarthritis of this joint.
The De Quervain’s tendonitis which by definition involves the APL and the EPB of the right thumb while present in a mild form in 2009/2010 resolved thereafter on the evidence of MRI imaging and only recurred to a diagnostic level after two operative procedures had been performed on the first metacarpocarpal joint of the right thumb. The surgical interventions raise the high possibility of this recurrence being associated with the joint pathology and the surgical intervention.
Based essentially on the evidence before it the Tribunal affirms both decisions, in particular that the determination of 12 August 2014 that Mrs Zenelovski was no longer entitled to compensation pursuant to s 16 and s 19 of the SRC Act as she no longer suffered from the effects of the accepted injuries and as a corollary was not entitled to compensation under s 24 and s 27 for permanent impairment and non-economic loss.
The decisions under review are affirmed.

I certify that the preceding 88 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of:

Miss E A Shanahan, Member

[sgd]........................................................................
Associate
Dated: 17 February 2017

Dates of hearing: 16 - 18 November 2016

Counsel for the Applicant: Angela Malpas

Solicitors for the Applicant: Robinson Gill, Jodie Gerritsen

Counsel for the Respondent: John Wallace

Solicitors for the Respondent: Australian Government Solicitor, Lindsay Scott
APPENDIX
APPLICANT
A1Statement of Mrs Karolina Zenelovski dated 21 June 2016
A2Clincal notes of Dr Terrance Brophy - Primary Health Care Medical and Dntal Centre Werribee Plaza,as at 3 July 2010,
A3Operation Report of Dr James Thomas dated 19 February 2016
A4Applicant's Tribunal Book, containing several doctor reports and ultrasound and x-ray results
A5MLCOA Report of Dr Ben Cheeseman, Consultant Occupational Physician, dated 28 April 2015
A6MLCOA Report of Dr Grant Ramage, Consultant Occupational Physician, dated 26 April 2016

RESPONDENT
R1Section 37 documents
R2Supplementary medical report Dr Murray Stapleton dated 2 July 2016

[2017] AATA 188

17 February 2017

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Administrative Law

Legal Concepts

Causation

Remedies

Appeal

Statutory Construction

Procedural Fairness

Dates of hearing:	16 - 18 November 2016
Counsel for the Applicant:	Angela Malpas
Solicitors for the Applicant:	Robinson Gill, Jodie Gerritsen
Counsel for the Respondent:	John Wallace
Solicitors for the Respondent:	Australian Government Solicitor, Lindsay Scott