Exell and Comcare [2011] AATA 55 (4 February 2011)

Last Updated: 29 March 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 55

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/2642

GENERAL ADMINISTRATIVE DIVISION		)
	Re		LYNETTE EXELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Regina Perton, Member and Dr Roderick McRae, Member

Date 4 February 2011

Place Melbourne

Decision

The Tribunal affirms the decision under review.

..............................................
Member

COMPENSATION – lateral epicondylitis to right elbow - whether compensable - whether condition arose in the course of employment

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16 and 19

REASONS FOR DECISION

4 February 2011

Ms Perton, Member, and Dr McRae, Member

1. Ms Lynette Exell was undertaking a disability training placement as a production worker with South East Industries and claimed she injured her right arm while lifting an empty 10cm by 10cm by 10cm cardboard box on 27 March 2006 (the condition).
2. Comcare denied her claim for compensation for right lateral epicondylitis on the grounds that the condition did not arise out of, or in the course of, her employment. Ms Exell seeks review of the decision and payment of medical expenses.

RELEVANT LEGISLATION

3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), as it was at the relevant date, provides:

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.

4. Section 4 of the Act provides:
   • (1) In this Act, unless the contrary intention appears:

...
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...
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.
injury means:

(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment
...
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.

...

5. Section 16 of the Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury. Section 19 of the Act provides for the payment of compensation for incapacity for work resulting from an injury.

ISSUE

6. The issue before the Tribunal is whether Ms Exell is entitled to compensation for the injury. This requires consideration of the following:
   • Did Ms Exell sustain an injury to her right upper limb arising out of or in the course of her employment? If so:
   • Was Ms Exell incapacitated as a result of the injury? If so:
   • Is Ms Exell entitled to compensation for medical treatment as a result of the injury?

DID MS EXELL SUSTAIN AN INJURY TO HER UPPER LIMB ARISING OUT OF OR IN THE COURSE OF HER EMPLOYMENT?

7. In evidence, Ms Exell told the Tribunal that she has a vision impairment and had been caring for her daughter for a number of years when she decided to return to work. She attended CRS Australia, a rehabilitation agency, and in March 2006 was sent to South East Industries on a four-week trial, extended to two months, working Mondays, Tuesdays and Fridays. Her work involved being seated at a table and packing 10g food sachets individually from a central pile into small cardboard boxes about half the size of a tissue box. Each filled box contained twelve sachets. The box would then be lifted onto a turntable which was part of a conveyor belt.
8. On Monday 27 March 2006 Ms Exell bent to pick up an empty box jammed under the conveyor belt with her right arm, and as she did so, she experienced a sudden severe pain in her right upper limb from her hand or wrist to her shoulder, particularly her elbow. She said that she continued working for an hour and a half because there was no-one to ask for assistance, after which the pain seemed to subside. The manager recorded in the first aid book that she had injured her arm. She explained that she worked on the Tuesday and Friday of that week without discomfort, but on the Saturday her children noticed that her right elbow was swollen, so she went to a pharmacist who recommended she take Panadol tablets. She said that on Monday 3 April 2006 she contacted her CRS case manager (Ms Lian Hiew), who told her not to attend a doctor because she was required to work. Ms Exell stated that she managed to complete her work that week, despite ongoing pain.
9. Ms Exell stated that because of the pain she consulted her general practitioner (Dr Peter Stiebel) on 12 April 2006. Dr Stiebel gave her a certificate for two days off work and recommended light duties, but Ms Hiew came to her home and ordered her to continue working regardless of the pain. She said that it was not until the last few days of her work trial that she was placed on light duties. She stated that staff and managers were most unhelpful. On 19 April 2006 she lodged a Hazard and Injury Report. On 16 June 2006 she lodged a claim for compensation.
10. Ms Exell explained that she was referred to Mr Philip Griffin, orthopaedic surgeon, in mid-2007 but she could not afford to accept his recommended treatment of a cortico-steroid injection in her elbow. In relation to the pain in her right arm, Ms Exell stated that since 2007 she has not been able to perform household tasks such as vacuuming or cleaning the house, or lifting objects, because her arm becomes painful and swollen. She is taking Panadeine Forte daily.
11. Under cross-examination Ms Exell agreed that the aim of the work trial at South East Industries was for training purposes to give her an opportunity to return to the workforce on a graduated basis, and was not an offer of employment. She also agreed that South East Industries is set up to assist people with disabilities, but disagreed that Ms Hiew had simply advised her that Dr Stiebel had approved her return to work. Ms Exell agreed that she has been prescribed Panadeine Forte monthly for several years (including shortly before commencing at South East Industries) for migraine headaches as required. She also agreed that she has hearing problems in her right ear. Ms Exell said that she has suffered from panic attacks and the loss of the sight in her left eye but denied that she has suffered from chronic anxiety for at least ten years, although she conceded that she still takes the anti-anxiety drug Xanax which she stated was prescribed by Dr Stiebel after she lost the sight in her left eye. She agreed that she did not consult Dr Stiebel until 12 April 2006, but maintained that the purpose of her visit on that day was in relation to her arm injury on 27 March 2006. She said that he told her that she had tendonitis in her right elbow.
12. Ms Exell agreed that despite Dr Stiebel’s recommendation that she be placed on light duties she completed her normal training duties on the following Monday, and explained that she was needed for those duties. Ms Exell said that she sent Dr Stiebel’s certificate to Ms Hiew three days after receiving it from Dr Stiebel.
13. In a report dated 3 March 2008 Dr Tony Kostos, rheumatologist, stated that after examining Ms Exell, he concluded that she was suffering from a regional pain syndrome affecting her right arm, representing a non-physical pain rather than a physical pain. Dr Kostos said that there was no evidence to support a diagnosis of lateral epicondylitis, and he did not believe that physical aspects of her employment contributed to her ongoing symptoms. No treatment was considered necessary. In oral evidence Dr Kostos explained that with lateral epicondylitis it is unusual for pain to be suffered at the time of the incident, as pain normally would be felt a few days later. He said that picking up a box the size of a tissue box could not cause a pain syndrome.
14. In a letter to Dr Stiebel dated 31 July 2007 Mr Philip Griffin, orthopaedic surgeon, referred to the ...right elbow pain possibly related to the assembly type work she was doing early in 2006. He stated:

There does not appear to be any episode of specific trauma to the right arm but an initial episode producing pain for a two to three hour period when she bent over to pick something up followed by complete resolution of her pain but the onset of swelling and pain some three weeks later.

15. Mr Griffin said that clinical examination of Ms Exell’s right elbow showed lateral epicondylitis, and he recommended a local steroid injection. He also referred her for an X-ray of her elbow to exclude any bony pathology.
16. In a Certificate of Capacity dated 12 April 2006 Dr Stiebel stated that Ms Exell was unfit for any duties from 7 to 11 April 2006, and was expected to be fit for normal duties on 19 April 2006. In reports dated 19 September 2007 and 28 April 2009 Dr Stiebel stated that Ms Exell has been diagnosed with lateral epicondylitis of the right elbow, with swelling and pain in the elbow and forearm region, especially after using the arm. Dr Stiebel said that the condition was caused as a direct consequence of her activity in the workplace on 27 March 2006 that involved reaching out and down picking up work with her outstretched right arm, which ...applied a force to the muscle/tendon/tendinous insertion that caused a strain. Dr Stiebel acknowledged that originally he had diagnosed tendonitis, but that ultrasound examination was negative for this condition.
17. In oral evidence Dr Stiebel stated that he has been Ms Exell’s general practitioner for several years, and that his notes dated 12 April 2006 indicate that she claimed she injured her right elbow on 27 March 2006 while reaching down beside a table at work. He confirmed that his notes recorded a diagnosis of right lateral epicondylitis/tendonitis but that there was no record of inflammation or tenderness.
18. Under cross-examination Dr Stiebel agreed that his notes of 12 April 2006 show that Ms Exell sought renewal of prescriptions for existing conditions such as pain and anxiety. He also agreed that lateral epicondylitis/tendonitis would normally occur in a repetitive situation or a repetitive motion situation, rather than as a result of direct trauma to the elbow joint, although the condition would be unlikely where repetitive movement occurred without carrying a weight.
19. In evidence, Ms Hiew told the Tribunal that she has been an occupational therapist since 1973 and was employed by CRS at the relevant time. She explained that the work environment at South East Industries was modified for people with disabilities, and that Ms Exell was given light tasks involving packing food sachets at a bench that was set up so as to enable her to work efficiently and safely. She said that she visited the workplace on 28 March 2006 to review Ms Exell’s progress and at the meeting Ms Exell had stated that the previous day she had hit her right shoulder after bending down to pick up a box that had fallen under the table. Ms Exell had told her that she experienced pain in her arm, but that the pain went after a while and she continued working.
20. Ms Hiew stated that on 5 April 2006 she received a telephone call from Ms Exell about workplace safety generally, but there was no mention of arm pain. On 7 April 2006 Ms Hiew visited South East Industries but Ms Exell had told the manager that she was ill and would not be working that day. Ms Hiew said that on 10 April 2006 Ms Exell told her that on 7 April 2006 her arm ached as a result of the incident on 27 March 2006 and that she would be seeking a medical certificate from Dr Stiebel. Ms Hiew offered to see Ms Exell at CRS but Ms Exell said that she did not have sufficient funds for a taxi, so Ms Hiew arranged to visit Ms Exell’s home on 11 April 2006 to examine the limb, which she explained was normal practice for an occupational therapist to assess any loss of range of movement. She said that on examination she found a full range of movement at the right elbow joint and no swelling or tenderness at the right elbow.
21. In respect of a decision by South East Industries not to offer Ms Exell a permanent position after the expiry of her training period, Ms Hiew stated that the manager decided that there was a lack of confidence about Ms Exell’s mobility around the workplace and concerns about her ability to fit into the culture of the organisation as a consequence of observed behavioural and psychological issues, rather than her vision impairment. Ms Hiew denied speaking inappropriately to Ms Exell at any time, and said that she was supportive when Ms Exell became angry and upset after the manager told Ms Exell that she would not be offered a position. Ms Hiew described Ms Exell as a difficult client and explained that there were concerns about her cognitive ability and insight, and consequent difficulty in understanding the reasons for certain actions.
22. Ms Exell did not attend a resumed hearing date. The Tribunal therefore made provision for her to review the evidence before the Tribunal, and to receive commentary. In a written submission received by the Tribunal on 16 August 2010 after she had been provided with an enlarged-print version of the transcript of Dr Stiebel’s and Ms Hiew’s evidence, Ms Exell stated that she still suffered from pain in her right elbow and described the impact this has had on her. She commented that she had the best time of my life when she went back to work in 2006. She expressed her concerns about how she had been treated by Ms Hiew, Comcare and others involved in the dispute.
23. The Tribunal accepts that Ms Exell felt a pain with a shooting quality in her right upper limb when she reached out and lifted a light, small, empty cardboard box during her duties whilst undertaking vocational training at South East Industries on 27 March 2006. However there is no dispute that that pain subsided after about 90 minutes and she continued to work that day. The Tribunal accepts Ms Hiew’s evidence that on 11 April 2006 she visited Ms Exell’s home and observed a full range of movement in the right arm, with no swelling or tenderness. Ms Exell reported on 26 April 2006 that her arm had recovered.
24. The Tribunal takes into account that the duties engaged in by Ms Exell at the relevant time were light in nature and involved no heavy lifting. Mr Griffin reported no trauma to the right arm but an initial episode of pain at work for a two or three-hour period that subsided, followed by swelling and pain some three weeks later, all of which was based on Ms Exell’s patient history obtained in mid 2007. The Tribunal also notes that Dr Kostos found no history consistent with or evidence of lateral epicondylitis, and his opinion that non-physical factors predominated in Ms Exell’s presentation. The Tribunal also notes the concession by Dr Stiebel that lateral epicondylitis/tendonitis would be unlikely where repetitive movement occurred without carrying a weight, and the evidence that Ms Exell did not seek medical treatment for 16 days as the condition had largely resolved. Together, the evidence leads the Tribunal to conclude on the balance of probabilities that neither the nature of the duties at South East Industries, nor the incident involving bending and reaching out to pick up a small empty cardboard box on 27 March 2006, contributed to anything other than a temporary pain of a shooting nature suffered by Ms Exell.
25. Consequently the Tribunal finds that Ms Exell did not suffer an injury to her upper right limb arising out of or in the course of her employment on 27 March 2006. Therefore there is no need to consider whether she was incapacitated as a result, and she is not entitled to compensation under the Act.

DECISION

26. The Tribunal affirms the decision under review.
    

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton OAM, Member and Dr Roderick McRae, Member

Signed: .................. ............................................

Kate Conners Associate

Dates of hearing: 15 October 2009, 29 April 2010

Date of last submission: 16 August 2010

Date of decision: 4 February 2011

Advocate for the applicant: Self-represented

Counsel for the respondent: Mr J Wallace

Solicitor for the respondent: Australian Government Solicitor