Foster and Telstra Corporation Limited [2010] AATA 89 (8 February 2010)

Last Updated: 9 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 89

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5715,

GENERAL ADMINISTRATIVE DIVISION		) 2009/0602 & 2009/0400
	Re		RUSSELL FOSTER

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal

Dr K S Levy RFD, Senior Member Brigadier G. Maynard, Member

Date 8 February 2010

Place Brisbane

Decision

The decision under review is affirmed.

.................[Sgd]...................
Senior Member

CATCHWORDS

Administrative Appeals Tribunal Act 1975 (Cth) s26

Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14(1), 5A, 5B, 4, 62, 14(1) and, Pt 2

Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536

Lees v Comcare [1999] FCA 753; [1999] 56 ALD 84

March v EMH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; 99 ALR 423

Penfold and Military Rehabilitation Compensation Commission [2006] AATA 90

REASONS FOR DECISION

8 February 2010

Dr K S Levy RFD, Senior Member

INTRODUCTION

1. This application brought by Russell Foster, is one where compensation is claimed under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for injuries which have developed over a number of years. The claim is based on the injuries being due to the applicant’s former employer, Telstra Corporation Limited. The hearing of the matter was elongated. Further evidence was taken after an adjournment of ten months. The applicant was a computer operator and has suffered pain in the hand and the forearm. He made an application for compensation on 16 February 2007 for tendonitis of the right wrist. On 20 April 2007 the respondent accepted liability for soft tissue injury to the right wrist from 15 February 2007. The respondent made two further determinations, firstly in August of that year and then on 16 October 2007, revoking its 20 April 2007 determination where it accepted liability for tendonitis.
2. As a result of the respondent’s decision to close one of its call centres, the applicant was made redundant on 7 November 2007. The respondent conducted further review of the matter in a motion dated 22 December 2008 and subsequently revoked its decision of 16 October 2007. It determined that it was not liable to compensate the applicant for tendonitis but was liable with respect to a ganglion condition. It further determined that liability should cease on 25 July 2007 as the applicant did not continue to suffer the effects of the ganglion condition from that date.
3. Again the respondents reviewed the matter and on 2 February 2009 it revoked the decision of 22 December 2008 and determined that the applicant no longer suffered the effects of a compensable injury as from 31 December 2007, but that the respondent was liable for compensation for ganglion of the right wrist. It also determined that as a result, the respondent was not liable to pay medical expenses (s 16 of the Act) or incapacity payments (s 19 of the Act) as from 31 December 2007.

ISSUES

4. The issues for determination are:
   • (1) Is the respondent entitled to review its decision of its own motion? In particular, is the decision of 2 February 2009 legally effective?
   • (2) Does the applicant suffer from tendonitis of the right wrist or a ganglion condition of the right wrist?
   • (3) If the applicant suffered from either tendonitis or a ganglion condition is that attributable to his employment with Telstra?
   • (4) If the answer to issue (3) is “yes”, is the applicant entitled to medical treatment or incapacity payments beyond 31 December 2007?

EVIDENCE

EVIDENCE OF THE APPLICANT

5. The evidence demonstrated that Mr Foster has suffered from a number of medical conditions. He has a reported history of pain in the right hand from January 2005. In addition, he has suffered depression, bursitis, an upper and lower respiratory tract infection, joint problems of the knees, and a genetic problem in one eye. The hearing of the evidence in this matter commenced on 20 and 23 February 2009. In cross examination, there was evidence of a potential somatisation disorder, an anxiety condition which manifests itself into a physical condition, suggested co morbidity of depression and other disorders, and also the potential impact of other private activities such as gardening on Mr Foster’s right hand and forearm pain. After hearing the evidence on the first day, the matter was adjourned for want of further medical evidence. That resulted in significant delays and the hearing of evidence from medical specialists didn’t occur until 10 December 2009.
6. The issues are essentially concerned with determining the origin of Mr Foster’s pain in his right hand and right forearm and whether they can be correctly attributed to his employment in undertaking computer work at Telstra. His work involved a high level of activity, searching computer screens and using a computer mouse with his right hand.
7. The initial onset of pain is reported to have been in January 2005. By the start of 2007, the applicant said that performance improvement programs within Telstra were introduced and performance targets required an increased level of output. He said those targets had to be achieved if his job was not to be under threat. Nevertheless, he made a Telstra ‘incident notification’ on 14 February 2007 and was examined by Dr Cameron on 28 March 2007. After ultrasound testing, no evidence of tenosynovitis was discovered. In May 2007 he had an MRI which evidenced some tendonitis and a complex ganglion of the right wrist. Mr Foster believes that the use of the computer mouse aggravated the ganglion condition.
8. In June 2007 Dr Couzens undertook an aspiration of the ganglion. In July 2007 Telstra then announced that the business in which Mr Foster was employed would be closed. On 17 August 2007 a determination was made that compensation would be denied for the claim for tendonitis. The applicant was told to apply for compensation for aggravation of the ganglion and right wrist tendonitis following further evidence being provided. On 14 September 2007 Mr Foster underwent further treatment with Dr Couzens and surgery was performed to remove the ganglion in his right hand. On 25 September 2007 he then applied for compensation for aggravation of the ganglion and right wrist tendonitis.
9. At the hearing on 20 February 2009, Mr Foster maintained that he still had tenderness over the scar of the right wrist ganglion and that his forearm and wrist ached after simple manual tasks. He had difficulties using a keyboard and mouse and he also suffered from a visual impairment (keratoconus). As a result of his medical conditions and redundancy, he is now employed as a parking inspector for the Brisbane City Council. This role involves him chalking tyres of parked vehicles, which also requires use of his hand and wrist.

MEDICAL EVIDENCE

10. The applicant first obtained medical advice in March 2007 and saw his general practitioner Dr Wright. At that time he made no mention of his right wrist pain. He again consulted Dr Wright on 18 April 2007 and on that occasion mentioned pain in the right wrist. He was provided with medication and referral to an occupational therapist. Dr Wright recommended an MRI be performed if the pain did not settle. The applicant was then advised that Telstra accepted liability from 20 April 2007 and he was granted sick leave from 25 April 2007 to 6 June 2007. In this period, he had an MRI. Afterwards Dr Wright changed his diagnosis to a “complex right wrist ganglion”. He also consulted Dr Cameron, a neurologist who initially determined that the condition was a degenerative one and unrelated to Mr Foster’s work. In June 2007, Dr Couzens was consulted and was of the view that the ganglion was not related to the applicant’s work as it was a degenerative condition (see T 27).
11. Dr Coleman was also consulted and provided an independent report (see report of 18 May 2009 – Exhibit 10). Dr Coleman reported arthritic changes to the base of the thumb and joints of the fingers and said there was a possible small ganglion on the ulnar side of the wrist. Both these conditions were unrelated to his employment but were “age related and constitutional”. Dr Coleman also gave evidence at the hearing on 20 February 2009. He said that the forearm pain was caused by muscles of the forearm being used in the repetitive activities of everyday life. He was not certain that the ganglion would actually cause pain. However, he said the mouse activity would increase pressure and perhaps cause pain if he had tendonopathy. However, it is normally accepted that six months after ceasing the activity that the pain would also cease. Under cross examination Dr Coleman was questioned as to why Mr Foster’s pain still had not settled. He said that there was no “tumour” evident but that Mr Foster did have a ganglion. In relation to tendonitis, Dr Coleman said that if that condition was present, then it would get better as time goes by although it might take one or two years. He also commented that use out of work hours could also aggravate the ganglion. For example, gardening would be an aggravating factor as would a slip or strain to the areas of the hands and forearm. Dr Coleman said the pain could also be affected by anxiety or stress.
12. Dr Couzens also gave oral evidence at the first hearing on 23 February 2009. He noted that it was then 17 months since he had performed surgery on Mr Foster’s hand and said once the ganglion was excised it might not return to normal. He noted that removing the ganglion should theoretically result in the return to a normal condition although other activities such as raking, hammering or lifting could also cause pain. His experience was that generally speaking, patients do not come back 12 to 18 months after having a ganglion removed. He said if there is still pain after that period, it would be regarded as permanent. In relation to tendonitis, Dr Couzens said there was no evidence of that in Mr Foster as shown by the MRI. In relation to arthritis, Dr Couzens opined that it is caused by the activities of everyday life and not from his previous employment. His opinion was that when he saw Mr Foster in mid 2007, he did not think that any other treatment was required other than the removal of the ganglion. He did not recommend treatment for tendonitis at that time.
13. After an adjournment of 10 months, the hearing continued on 10 December 2009. Both Dr Coleman and Dr Couzens provided further written reports and again gave oral evidence.
14. Dr Coleman’s view was that based on all of the evidence that he had seen, Mr Foster had had a ganglion in the right wrist. He did not support the possibility of keyboard work being the “cause” of the ganglion, nor did he think it would be the cause of arthritis. However, he agreed it could “aggravate” the ganglion because of the use of a computer mouse. In his professional opinion, using a computer mouse might aggravate a ganglion (and lead to consequential pain) but would not be the cause of the condition. He maintained his earlier held view that the applicant’s arthritis of the thumb is age related and hereditary and the ganglion condition is constitutional.
15. Dr Couzens also gave evidence at the resumed hearing on 10 December 2009. He said there were two conditions- (1) ganglion on the ulnar side of the wrist; and (2) pain on the extensor muscle distally (referring to tendonitis). With respect to the ganglion, he said this could cause pain as described by Mr Foster. He could not be certain that the ganglion could be caused by scrolling when using a computer mouse but he was clearly of the view that it was aggravated by the work he did at the time he was employed at Telstra and more recently, aggravated by the work he did as a Council parking inspector.
16. As to recovery after surgery, Dr Couzens said it usually takes three months on average before the affected limb could be “weight bearing”. He expected recovery about 14 weeks after surgery but noted that some people could still have pain after that time. He was guided by Mr Foster’s responses to him. He reviewed Mr Foster on four occasions and Mr Foster expressed the view that the pain was improving over that period after surgery in September 2007. Dr Couzens also reviewed Mr Foster on 17 October 2007 and 30 November 2007. By the latter date, he noted the range of movement in Mr Foster’s hand was excellent and he had not made arrangements to see him again. He thought he should have recovered by 31 December 2007.
17. In further clarification of the condition and its cause, Dr Couzen said ganglions can grow back – even in the same location as a previous ganglion. His opinion was that as the cause of the ganglion was constitutional he was of the opinion that another ganglion must have grown since he had last seen him. He thought that was the most likely cause given that Dr Coleman’s report in April 2008 showed that at that time, the previous ganglion had resolved. He said that the present pain being experienced would be due to a new ganglion, aggravated by whatever activity the applicant was then doing, for example, marking tyres or other activities in which he is engaged. He did not think it could be attributed to work performed for Telstra in 2007.

CONSIDERATION

18. In order to answer the issues to be determined, the evidence must be examined in light of the governing law. Section 14(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth) provides that:

(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

19. Liability under this section is restricted to any limitations provided by other provisions in part II of the [1999] FCA 753; Act (Lees v Comcare [1999] 56 ALD 84).
20. The term “injury” is the defined in s 5A of the Act where it is said to include a “disease”. “Disease” is then defined in s 5B of the Act to mean:

(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.

21. An “ailment” is defined in s 4 of the Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
22. The definition of an injury implies that some activity has initiated the condition from which the person now suffers. A disease on the other hand implies that the condition is due to inherent development or something idiosyncratic or constitutional which is related to an individual. It is noted also that the definition of “disease” requires a contribution to “a significant degree”. That term is amplified within the definition contained in s 5B to mean “a degree that is substantially more than material”.
23. Within that context, I now turn to the issues for determination.

ISSUE 1: IS THE RESPONDENT ENTITLED TO REVIEW ITS DECISIONS OF OWN MOTION? IN PARTICULAR, IS THE DECISION OF 2 FEBRUARY 2009 LEGALLY EFFECTIVE?

24. This question involves a consideration of s 62 of the Act. In the ordinary course of merits review under s 26 of the Administrative Appeals Tribunal Act 1975 (Cth), an original decision maker may not further review that decision unless the enactment that authorises the making of the application expressly permits the decision to be altered. That exceptional case is provided for by s 62 of the Act which allows for decisions to be reconsidered by Telstra or by its delegate. Therefore the decision of 2 February 2009 by the respondent is the legally effective decision under review, the former decisions having been lawfully revoked (Penfold and Military Rehabilitation Compensation Commission [2006] AATA 90).

ISSUE 2: DID THE APPLICANT SUFFER FROM EITHER TENDONITIS OR GANGLION?

25. The evidence shows that the applicant had a ganglion condition which was aspirated (removal of fluid) in June 2007; and subsequently in September 2007, the ganglion was excised by surgery. Dr Couzens performed both of these procedures. In a question by Dr Maynard to Dr Couzens during the course of the hearing, Dr Couzens said that post operative complications occur in 5% of cases only. We note also the pain occurred long before the November 2007 redundancy arose.
26. We note the expert medical evidence, that a ganglion is caused by constitutional factors and in particular, where someone has a breakdown of collagen and this forms a cyst like growth in that part of the body. The mere removal by surgery does not prevent the collagen deterioration from forming into another ganglion. The medical evidence of Dr Couzens (Mr Foster’s surgeon) and Dr Coleman is consistent in the expectation that the pain should have settled within about 14 weeks (on average). Dr Couzens said reports from Mr Foster by the end of 2007 were that he had progressed well and that he therefore saw no need for Mr Foster to see him again. As a complementary remark, Dr Couzens said that the surgery was done in “a bloodless field” and therefore he was confident that there was a complete removal of the ganglion at the time of surgery in September 2007.
27. The complaint of ongoing pain is therefore, on the balance of probabilities, explicable by the opinions of Dr Coleman and Dr Couzens that it is possible for the ganglion to regrow which would be due to an individual’s predisposition. Neither of the medical experts said that there was any logic from a medical point of view that either pain while working in Telstra, or pain which appears to have become worse since December 2007 could be attributable to the work performed by Mr Foster while he was with Telstra. Working with Telstra would have been an aggravation, but not a cause to Mr Foster’s condition.
28. We accept the evidence of both Dr Couzens and Dr Coleman. We find no evidence of any significance which is in dispute between the opinions of these doctors. Consequently, based on the evidence, we find as a fact that there is no tendonitis condition suffered by Mr Foster. We also make a finding of fact that Mr Foster had a ganglion which was removed in 2007. We further find that on the balance of probabilities, the only explanation based on the medical evidence is that any pain experienced by the applicant since 31 December 2007, the reasonable period following excision of the ganglion, would be that a further ganglion has grown due to constitutional factors. In our opinion, the evidence clearly shows that this must have occurred since Mr Foster has ceased his employment with Telstra.

ISSUE 3: IS ANY CONDITION ATTRIBUTABLE TO MR FOSTER’S EMPLOYMENT AT TELSTRA?

29. We make a finding of fact that the applicant has a “disease” within the meaning prescribed in the Act. From the findings in Issue 2 above, there is no evidence of attribution or causation which relates to the applicant’s employment with Telstra. The medical evidence discloses that that employment could have been an aggravation but the statutory definition requires there to be a “material” contribution. A consideration of that issue is consistent with the provision in s 14(1) of the Act that requires that the evidence of injury “results in”... “incapacity for work”. The linkage required is related to “a ‘commonsense’ evaluation of the causal change, that evaluation being made in the light of the statutory formula itself (March v EMH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; 99 ALR 423). It was more recently considered by Finn J in Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 at 542 where His Honour said that the materiality factor must be assessed by an “evaluative threshold below which a causal connection may be disregarded.” His Honour also said that all of the relevant issues should also be taken into account.
30. The strength of the medical evidence shows that there is a temporal connection between the applicant’s employment with Telstra and an aggravation of his ganglion. It is clear however that the ganglion had been surgically removed before his redundancy and that any resulting pain would have been expected by the medical experts to have resolved by 31 December 2007. That medical assessment was based on positive reports from the applicant himself. Medical evidence shows that a ganglion is caused by constitutional factors which are unrelated to employment factors. We find that the evidence cannot sustain an argument that the applicant’s condition was contributed to a significant degree as required by the statute.
31. On the basis of the authorities and taking account of the applicant’s evidence and the medical opinions, we find that causation of the ganglion cannot be attributable to his employment with the respondent.

ISSUE 4: IF THE ANSWER TO ISSUE 3 IS “YES”, IS THE APPLICANT ENTITLED TO MEDICAL TREATMENT OR INCAPACITY PAYMENTS BEYOND 31 DECEMBER 2007?

32. As our answer to Issue 3 is “no”, it is not strictly necessary to answer this question, or at least in any detail. Based on the finding in Issue 3 we find there is no justification for any payment for medical treatment or incapacity as the requirements of s 14(1) of the Act are not satisfied.
33. We note however that compensation payments up to 31 December 2007 have already been provided based on the respondent’s decision on 2 February 2009. As a result of our findings, there is no liability on behalf of the Commonwealth. Further, as was noted by Counsel for the respondent at the hearing in December 2009, the respondent does not intend to pursue that matter further.

CONCLUSION

34. We therefore find that the application must fail. The decision under review is affirmed.
    

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ........................[Sgd].............................................

Kate Slack, Research Associate

Date/s of Hearing 20 February and 10 December 2009

Date of Decision 8 February 2010

For the Applicant Brenda Gordon, advocate

Counsel for the Respondent Ms Elenne Ford

Solicitor for the Respondent Sparke Helmore Lawyers