Cichello and Comcare [2010] AATA 509 (8 July 2010)

Last Updated: 9 July 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 509

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3656

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MILA CICHELLO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Miss E A Shanahan, Member

Date 8 July 2010

Place Melbourne

Decision

The Tribunal sets aside the decision under review and in substitution decides that the applicant's carpal tunnel pathology and cervical spondylosis were aggravated by her work duties and thus her work duties contributed to a significant degree to these conditions. The respondent is liable to pay compensation under ss 14 and 16 of the Safety, Rehabilitation and Compensation Act 1988. The respondent shall pay the applicant's costs and disbursements in accordance with clause 6.8 of the Tribunal's Guide to the Workers' Compensation Jurisdiction.

(sgd) E A Shanahan
Member

WORKERS' COMPENSATION – carpal tunnel syndrome and cervical spondylosis – aggravation of the underlying asymptomatic conditions – rendered symptomatic and incapacitating – compensable – decision set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16

Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191

Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176

Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

8 July 2010

Miss E A Shanahan, Member

1. Mrs Cichello lodged her application for workers' compensation for the conditions of right lateral epicondylitis, right carpal tunnel syndrome and cervical disc constriction at C6/C7 vertebrae on 6 August 2008. These conditions she attributed to computer related work duties. On 29 October 2008 the respondent accepted liability for the right lateral epicondylitis but denied liability for the other two conditions on the basis that both of these conditions were constitutional in nature. Following internal review the respondent affirmed the determination on 15 June 2009 following which Mrs Cichello lodged an application for review of the decision with the Administrative Appeals Tribunal on 3 August 2009.
2. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents, R1). Additional documentation was lodged by the applicant and the respondent:

For the applicant,

The operation notes constructed by Mr Stephen Tham dated 30 April 2009 (A1).

The medical report and opinion of Associate Professor Owen White dated 18 November 2009 (A2).

and for the respondent,

A letter from Dr Jane Sklovsky in the form of a referral to Dr Amanda Gilligan, neurologist, dated 2 March 2009 (R2).

The clinical notes of Deepdene Surgery regarding Mrs Cichello (R3).

The clinical records of Mr Isaac, physiotherapist, in respect of Mrs Cichello (R4).

The medical report of Mr Murray Stapleton, plastic surgeon, dated 14 October 2009 and his article Occupation and Carpal Tunnel Syndrome ANZ Journal of Surgery, 2006 76 494-496 (R5).

An abstract of the article entitled The Genetic Contribution to Carpal Tunnel Syndrome in Women: A Twin Study (R6).

3. Mrs Cichello was represented by Mr Mark Carey of counsel and the respondent by Miss Rhonda Henderson of counsel. The Tribunal heard evidence from Mrs Cichello, Dr Luan Tran, Dr Ken Muirden, Associate Professor Owen White and Mr Murray Stapleton.

ISSUES BEFORE THE TRIBUNAL

(i) Was Mrs Cichello's previously asymptomatic cervical spondylosis and carpal tunnel pathology aggravated by her work duties, in particular her computer activities.
(ii) Was the aggravation contributed to a significant degree by her employment that is, to a degree that is substantially more than material.

BACKGROUND TO THE APPLICATION

4. Mrs Cichello is a 53 year old psychologist who migrated to Australia from the Philippines in 1976. Prior to her migration she had completed two years of training as a nurse. She commenced work with the Department of Health and Aged Care (the Department) in February 1990 and in 2007 was an Executive Officer involved in investigation of complaints in the aged care section. This entailed visiting and assessing aged care facilities in terms of their performance and providing an assessment report. In 2007 the department established a hot line for the reporting of complaints from aged care clients and their families. She was initially required to work on the hot line on a roster basis for periods up to four weeks. She liked this work given the direct contact with the public. In response to a request for lengthier commitments, she volunteered and transferred to this section in January 2008. The work involved telephone answering and taking complaints from 9.00am to 5.00pm four days per week while seated at a desk and entering data into a computer. She held the telephone receiver in her left hand and frequently freed her left hand by balancing the receiver between her left shoulder and head. She typed with the right hand using two fingers. In her previous role she had used a keyboard for up to two hours per working day.
5. In late April 2008 she experienced a gradual onset of nocturnal pins and needles in the fingers of her right hand, a dull constant ache in the right forearm in the afternoons, pain in the right neck in the region of trapezius and sharp right elbow pain on movement. By early May the symptoms were disturbing her sleep. On occasion her right hand was numb. In late May she noted weakness of the right hand and limitation of right arm movement to the extent that she could not scratch her back. The right hand coped with her typing requirements in the morning but by afternoon felt heavy and sore. She discerned a pattern wherein her symptoms improved overnight and at weekends being maximal towards the end of the working day. She consulted her general practitioner on 23 June 2008. Dr Sklovsky diagnosed right tennis elbow and arranged appropriate X-rays. The non steroidal anti-inflammatory drug Mobic was prescribed.
6. The cervical X-ray revealed C5/C6 and C6/C7 disc space narrowing without nerve root compression; the right shoulder X-ray showed mild degenerative changes in the right acromioclavicular joint; the right elbow X-ray revealed cortical irregularity at the attachment of the common flexor tendons (T4, p20). Dr Sklovsky referred Mrs Cichello to Mr David Isaac for physiotherapy. The physiotherapy increased her pain. At this stage (16 July 2008) Mrs Cichello noted that her right forearm was swollen. Subsequently her right thumb became numb with the pins and needles persisting in the index, middle and ring fingers. She was then referred for nerve conduction studies. The nerve conduction studies showed mild right carpal tunnel median nerve compression. Her left hand commenced to feel tight in August 2008 and on 14 August she had a jeweller cut off her wedding ring. She subsequently developed pins and needles in the left hand. Throughout this period Mrs Cichello had several days off work after which her duties were modified.
7. Dr Tran took over Mrs Cichello's treatment on 18 August 2008 in Dr Sklovsky's absence. He recommended the use of a wrist support, rest and the cessation of typing. Mrs Cichello's symptoms, in particular the right elbow pain, improved but her left hand symptoms progressed. On 18 December 2008 Dr Tran advised three months off work in the hope of a full recovery. A CT scan of the cervical spine was performed and revealed moderately severe degenerative changes with the suggestion of spinal canal stenosis at C5 to C7 levels. Given these findings an MRI was performed on 24 December 2008. This confirmed wide spread degenerative changes, disc bulges at C4/C5, C5/C6 and a broad based protrusion at C6/C7 indenting the spinal cord minimally at this and the C4/C5 level. Dr Tran prescribed a course of Prednisolone as a diagnostic trial to differentiate between a cervical or carpal tunnel cause of Mrs Cichello's symptoms. The Prednisolone was of no benefit regarding the hand symptoms but there was a slight improvement of the pain in her right shoulder region.
8. Mrs Cichello was referred to Dr Amanda Gilligan, a neurologist. Dr Gilligan diagnosed bilateral carpal tunnel syndrome exacerbated by the typing duties and recommended surgical treatment on the right side. A right carpal tunnel decompression was performed by Mr Stephen Tham, hand surgeon, on 30 April 2009 with complete resolution of Mrs Cichello's hand symptoms enabling her to return to work on 16 June 2009 in the funding section of the department.
9. Mrs Cichello's right elbow epicondylitis has resolved with time as have the left carpal tunnel symptoms. Mr Tham had suggested that left carpal tunnel release be performed but Mrs Cichello declined as she had been awake, inadequately locally anaesthetised during the right sided procedure and suffered severe pain.
10. Mrs Cichello's evidence is summarised above. Under cross examination by Miss Henderson, Mrs Cichello denied she had exaggerated the time she spent typing, maintaining this was 80% of her working day. She confirmed she had never experienced symptoms in the right little finger despite some entries in Mr Isaac's clinical notes to that effect.
11. Associate Professor Owen White saw Mrs Cichello seven months after her successful right carpal tunnel release. In his report of 18 November 2009 he outlined Mrs Cichello's medical history and the fluctuation in her symptoms according to her workload, the symptoms improving substantially when not working and recurring on resumption of work. In his opinion the MRI of the cervical spine showed mild central canal stenosis and degenerative changes at C5/C6 and C6/C7 without nerve root compromise. His examination of the applicant had been normal except for the presence of mild tenderness over the anterior aspect of the right shoulder and the extensor muscle origin at the right elbow.
12. Associate Professor White was of the opinion that Mrs Cichello had had significant right epicondylitis and a mild right carpal tunnel syndrome (CTS) both of which had improved substantially and both of which may well have been contributed to by her typing. He raised the possibility that the swelling associated with the epicondylitis had contributed to the development of what was a secondary CTS.
13. In his oral evidence to the Tribunal, Associate Professor White expressed the opinion that CTS was most probably multi factorial in aetiology rather than purely constitutional although the basic anatomy of the carpal tunnel was of primary importance and the occurrence of symptoms related to the dynamic state of the soft tissue components of the carpal tunnel. Epidemiological studies had reported an increased incidence of carpal tunnel syndrome in individuals who suffered from obesity, hypothyroidism, diabetes and pregnancy all of which increase the swelling or oedema of these soft tissues, as can mechanical activity. He said that while the epidemiological studies were useful in that they contributed to an understanding of the factors that may be associated with the development of CTS, they could not determine the cause in the individual patient. In Mrs Cichello's case the nature of her duties had led to the compromise of her median nerve in the carpal tunnel. He considered the operative finding of median nerve bruising suggestive of injury to the nerve rubbing against the retinaculum.
14. The Tribunal, having noted Mrs Cichello's small hands and wrists despite being overweight, asked Associate Professor White if he had, in his practice, noted any ethnic differences in the incidence of CTS. He had not, but he was aware of papers in the medical literature on this topic. He was not able to provide the references.
15. Dr Muirden, a rheumatologist, saw Mrs Cichello in October 2008 (T17, p43). He diagnosed mild cervical spondylosis, right lateral epicondylitis and bilateral carpal tunnel syndromes and opined that the right lateral epicondylitis had been contributed to by her workplace tasks. The other conditions were described as constitutional and unrelated to Mrs Cichello's work.
16. Dr Muirden had been present in the hearing room while Mrs Cichello described the balancing of the telephone receiver between her left shoulder and head while taking telephone complaints. This caused him to change his opinion regarding her cervical spondylosis’s relationship to her work tasks. He believed that maintaining such a position would cause neck muscle spasm and pain rendering the previously asymptomatic cervical spondylosis symptomatic.
17. Dr Muirden based his opinion that there was no causal contribution by work tasks to the development of CTS on the published epidemiological studies and in particular a Mayo Clinic prospective study published in the Journal of Neurology in 2001 and that of the Department of Environment from Emery University, Atlanta, Georgia published in the American Journal of Industrial Medicine in 2002. These studies had not found an increased incidence of CTS in keyboard operators. The only positive association detected had been in meatworkers working in a cold environment. Dr Muirden believed that any involvement of more forceful use of the hands such as the use of vibratory tools remained the subject of debate. While there was no causal link between Mrs Cichello's CTS and her work, Dr Muirden was of the opinion that her keyboard activities would have aggravated her symptoms.
18. The Tribunal asked if, as was her experience, pruning plants for one hour or more could precipitate symptoms of CTS albeit on a temporary basis. Dr Muirden agreed that it could as he himself developed CTS symptoms after pruning.
19. Mr Stapleton had seen Mrs Cichello on 14 October 2009 at the request of the respondent. He confirmed the diagnosis of right epicondylitis and bilateral CTS (R5). He accepted that the right epicondylitis was work related but opined that the CTS was genetically determined and in Mrs Cichello's case had been aggravated by her weight and the hormonal changes of menopause. It had not been in any way contributed to by her work. He advised surgical decompression of the left carpal tunnel. Mr Stapleton provided a copy of his article Occupation and Carpal Tunnel Syndrome published in the ANZ Journal of Surgery, 2006 76 494-496 (R5).
20. In his evidence to the Tribunal Mr Stapleton maintained his opinion that work tasks neither caused nor aggravated CTS but in answer to the Tribunal's question whether repetitive actions could cause an asymptomatic individual with carpal tunnel pathology to become symptomatic his answer was definitely.
21. Mr Stapleton had never seen bruising of the median nerve at surgery nor had he ever performed an endoscopic carpal tunnel release. He was aware of MRI studies showing oedema of the median nerve but did not know the incidence of this finding. He had postulated both in his report and his article that swelling of the median nerve occurred so that activities such as repeated flexing of the wrist compressed the swollen nerve. Simply lying in bed at night when body fluids equalise added to the pressure on the nerve. The Tribunal asked Mr Stapleton to explain how this occurred given that rest in bed physiologically results in a diuresis (increased output of urine) mediated by volume receptors in the inferior vena cava triggering a decrease in the posterior pituitary output of anti diuretic hormone. Mr Stapleton could not explain the mechanism he relied on and was unaware of the role of venous volume receptors in the inferior vena cava.
22. In his article Occupation and Carpal Tunnel Syndrome, Mr Stapleton reviewed some of the medical literature and analysed 347 patients with conclusive evidence of carpal tunnel compression that he had seen for medico-legal purposes. Of these, 35% were men and 65% women and 82% had bilateral CTS. The commonest type of work in both sexes was process working. A complete absence of manual stress was noted in 13% of men and 3% of women. In the group diabetes was present in 7%, thyroid conditions in 4% and a positive family history existed in 10%. Of the group 34% were either overweight initially or had gained more than 10% of their body weight in the five years preceding presentation. In this article Mr Stapleton had argued that if a repetitive wrist movement was a contributory factor concert pianists should have the highest incidence of CTS. The article also reviewed, in part, 396 cases of carpal tunnel release performed at a Melbourne hospital between 1997 and 2001. Of these patients 85% were unemployed which led him to question what if any work factor had contributed to their CTS. No data was presented as to whether they were unemployed because of their CTS.
23. The operative report written by Mr Tham on 30 April 2009 was obtained during an adjournment in the hearing. This report states:

Under a bloodless field the standard proximal portal was first established. The trochar and cannula was then inserted with marked discomfort. On soft tissue dissection there was marked symptoms of numbness. The procedure was abandoned.
A longitudinal incision was then carried out ulnar to the right thenar crease. Soft tissue dissection was performed and the transverse carpal ligaments completely released both proximally and distally. There was minor bruising of the median nerve distally. Skin was closed with 5-0 rapide. Standard dressings were applied.

LEGISLATION

24. The Safety, Rehabilitation and Compensation Act 1988 (the Act) provides in s 14 that Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
25. Section 16 of the Act relates to medical expenses stating:

(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.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

26. Sections 5A and 5B of the Act define the term injury and disease respectively. Section 5A states:

(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Section 5B defines a disease in the following terms:

(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.

27. Section 4 of the Act defines an aggravation as including acceleration or recurrence and an impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function. Medical treatment is also defined.
28. An ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

SUBMISSIONS

The Applicant

29. The applicant's case was based on aggravation of her underlying cervical spondylosis and carpal tunnel pathology, be they diseases or ailments, by way of rendering them symptomatic. Mr Carey had not strongly pursued the rejection of Mrs Cichello's claim relating to cervical spondylosis but this aspect of the claim had been enlivened by Dr Muirden's evidence that her employment had contributed to the condition by rendering it symptomatic.
30. It was submitted that Dr Muirden's change of opinion was particularly cogent as Comcare's rejection of the claim had been based on Dr Muirden's report of 9 October 2008.
31. It was accepted that the cause of CTS was unknown and probably of multi factorial origin, including a genetic predisposition. Mrs Cichello's work dealing with complaints and recording these by typing data into a computer had been continuous and intense over a period of four months before she developed symptoms. It was contended that as the CTS symptoms commenced at the same time as those of the accepted right epicondylitis, the same mechanism was probably involved in both disease processes, that is, the prolonged typing requirement of Mrs Cichello's employment. Despite Mrs Cichello having some of the risk factors predisposing her to the development of CTS it was contended this was not an inevitable result.
32. Dr Muirden, Associate Professor White and Mr Stapleton had all agreed that Mrs Cichello's increased use of her right hand and arm could render her symptomatic. Mrs Cichello's treating doctors considered that surgical release of the right carpal tunnel was indicated.
33. Mr Carey relied on the decision of the Full Court of the Federal Court in Commonwealth v Beattie [1981] FCA 88; (1981) 53 FLR 191 (Beattie) wherein the Court found that an increase in a symptom (in this case pain) had aggravated a physical injury without there being further pathological change. Mr Carey urged the Tribunal to find such aggravation had occurred in Mrs Cichello's case and was compensable under ss 14 and 16 of the Act.

The Respondent

34. Miss Henderson accepted that Dr Muirden held the opinion that Mrs Cichello's employment had aggravated her cervical spondylosis by rendering it symptomatic but contended that Mrs Cichello had not been incapacitated as she had never taken sick leave for her neck symptoms. She pointed out that Associate Professor White had found no convincing evidence that the cervical spondylosis was a major problem in terms of symptoms.
35. Miss Henderson relied on the evidence of Mr Stapleton and Dr Muirden that Mrs Cichello's employment did not cause her bilateral carpal tunnel syndromes and the opinions of Associate Professor White and Dr Muirden that Mrs Cichello's symptoms would have resolved with rest alone and surgery had not been indicated.

TRIBUNAL'S DELIBERATIONS

36. There is no dispute as to Mrs Cichello's diagnoses. She has cervical spondylosis and has had bilateral carpal tunnel syndromes. All her symptoms have now resolved following treatment which included surgery and a change in her work duties. Her claim for compensation is based on aggravation of underlying cervical degenerative disease and carpal tunnel pathology which has been rendered symptomatic by her employment.
37. Counsel for the applicant has submitted Mrs Cichello's medical conditions fall under the s 5A definition of an aggravation of an injury whereas Counsel for the respondent has contended that the condition meets the definition of disease as an ailment as defined in s 5B(1)(b) which has been aggravated. The classification as a disease under s 5B attracts the requirement that there be a significant contribution to the condition by the employee's employment. Significant degree means a degree that is substantially more than material.
38. From the medical experts’ perspectives cervical spondylosis and carpal tunnel syndrome are diseases characterised by their underlying pathology and clinical presentation including the diagnostic tests. The symptoms produced in Mrs Cichello's case have followed extrinsically applied mechanical stressors which would be considered an injury.
39. There is a considerable volume of case law concerning what is an injury. Although this determination depends on the facts of the case, the Tribunal has followed the High Court decision in Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 where the High Court concluded that a sudden physiological change in Mrs Petkoska's case in the form of an embolic cerebral infarct (stroke) arising from a diseased mitral valve was an injury. The High Court presumably chose the word physiological intentionally to distinguish such an event from any change in the underlying pathology.
40. Mrs Cichello's work related development of symptoms attracts s 5A of the Act as being an injury. However in the Tribunal's mind Mrs Cichello's medical condition could also be classified under s 5B of the Act as an aggravation of an ailment (s 5B(1)(b)) with the attendant requirement of employment contributing to a significant degree. Both definitions will be considered.
41. The clinical history given by Mrs Cichello shows a temporal relationship between her employment duties and her symptoms, these being more severe toward the end of a working day, diminishing overnight and on weekends and holidays until they became chronic and non-fluctuating in December 2008. Her major symptomatology, that of right CTS, was not relieved until the April 2009 surgery. Such a relationship is suggestive of work induced changes in the underlying condition be it pathological or physiological.
42. The expert medical evidence provided by Dr Muirden, Associate Professor White and Mr Stapleton was that Mrs Cichello's work had not caused her cervical degenerative disease or her carpal tunnel pathology. In relation to the cervical spondylosis, Dr Muirden changed his earlier opinion after hearing Mrs Cichello's evidence before the Tribunal and concluded her cervical spondylosis had been rendered symptomatic by her work. All three experts were of the opinion that the type of work performed by Mrs Cichello would aggravate the symptoms of CTS although they believed her CTS may have become symptomatic at some time in the future absent the typing duties. They were divided in their opinion as to the need for surgical intervention. Dr Muirden and Associate Professor White favoured conservative treatment, that is rest, and Mr Stapleton supported not only the right carpal tunnel release performed in April 2009 but recommended surgical intervention on the now asymptomatic left CTS. They all considered the other contributing factors indicated by epidemiological studies to be relevant and noted Mrs Cichello had some of these factors theoretically rendering her more likely to develop CTS.
43. The question the Tribunal must answer is whether the rendering of asymptomatic medical conditions symptomatic is an aggravation attributable to Mrs Cichello's employment. And if so, was the employment impact of a significant degree.
44. In Beattie Evatt and Sheppard JJ posed the question “Can incapacitating pain brought on by activity undertaken in the course of employment constitute an aggravation of a physical injury, not-withstanding that such pain is not brought about by any further pathological change?” This question they answered in the affirmative.
45. In Tippett v Australian Postal Corporation (1998) 27 AAR 40 Finkelstein J said at page 44 ...If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment then the employee will have suffered a compensable injury:... (Finkelstein J followed the Full Court decision in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176.
46. Mrs Cichello's cervical spondylosis and any carpal tunnel pathology that existed were asymptomatic until late April 2008. Thereafter the activities undertaken in her employment rendered her symptomatic. She experienced pain in the right shoulder and neck region (trapezius muscle), right wrist and hand followed by similar symptoms in the left hand. This is an aggravation of the underlying conditions, be they injuries or ailments, resulting in incapacity.
47. It is common knowledge that human beings can function quite normally in the presence of asymptomatic disease processes. Symptoms are the usual reason for individuals to seek medical attention and symptoms give rise to some degree of incapacity be it in work performance or daily living.
48. Both Mrs Cichello's cervical spondylitic pain and her left hand symptoms were temporary but incapacitating until they resolved with prolonged rest. Should she resume the exact same employment activities she performed between January and June 2008 it would be likely that she would suffer recurrence of her neck and left hand symptoms. She remains asymptomatic since resuming work in the finance section of the Department performing different activities.
49. The symptoms of the right CTS resolved completely after right carpal tunnel release surgery. Dr Muirden and Associate Professor White have considered the surgical treatment unnecessary but were unable to suggest a timeframe for resolution with rest alone. Dr Gilligan, Dr Tran, Mr Tham and Mr Stapleton believed surgical treatment was indicated and it certainly enabled her to return to work. The Tribunal determines that the carpal tunnel release and conservative treatment were indicated prior to surgery as was the continuing conservative treatment of the neck and left hand symptoms until they resolved.
50. Section 16(2) of the Act states that Comcare is liable to pay the cost of medical treatment whether or not the injury results in an incapacity for work. Mrs Cichello's symptoms arising from all of the conditions including the accepted left epicondylitis were present at the same time and all contributed to her incapacity with the right CTS being the major factor preventing her from working.
51. If indeed the definition attracted should be that of s 5B the contribution by her employment is of a significant degree and more than materially as on the evidence it was the sole factor rendering her asymptomatic medical conditions symptomatic. The Tribunal considers Mrs Cichello to be a truthful witness.
52. The Tribunal determines that Mrs Cichello's bilateral carpal tunnel syndrome and symptomatic cervical spondylosis have arisen from her employment. Comcare is liable to pay compensation in accordance with ss 14 and 16 of the Act. The matter is remitted to Comcare to determine the amount of compensation payable. The Tribunal orders Comcare to pay the applicant's legal costs in accordance with clause 6.8 of the Tribunal's Guide to the Workers' Compensation Jurisdiction.

I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E A Shanahan, Member

(sgd): Leah Berardi

Clerk

Date of Hearing 15 April 2010

Date of Decision 8 July 2010

Counsel for the Applicant Mr M Carey

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Ms R Henderson

Solicitor for the Respondent Thomson Playford Cutlers