Australian Postal Corporation v Bessey

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Australian Postal Corporation v Bessey | Case summary | Zoe

Mr McKenzie commenced working at the Australia Bureau of Statistics (ABS) on 5 March 2016 and at the time of injury was working full time as a Household Survey Operations (HSO) Support and Compliance Human Resources advisor. Mr McKenzie completed a Bachelor of Science in Engineering and held numerous roles in Australia and overseas before he commenced employment at the ABS. Mr Mckenzie is married and has two children.
On 13 June 2018 Mr McKenzie submitted an ABS Incident & Hazard Report advising of an incident on 31 May 2018 where he experience pain in both hands. Mr McKenzie had no time off work in respect of the injury and continued working: I had sore hands on Thursday and following Friday. This soreness returned later the next week on Wed and Thursday at the end of the workday. Currently only right hand still is sore (intermittently).
On 24 May 2019 Mr McKenzie submitted an ABS Incident & Hazard Report advising of an incident on 5 May 2019 where he experience pain in both hands. Mr McKenzie had no time off work and continued working. Describing the event: Over that week I started to feel strain in wrist/palm area of both hands, but predominantly right hand. And I started to do more stretches (in addition to what I had already been doing). When this was only relieving the strain and not getting better long term, I wrote an email to John and asked for a desk assessment. I have just been using the usual software in HSO MPS: CAIWMS, Excel, Word, Lotus Notes, etc. I have also been printing letters and sorting letters.
On 6 June 2022 Mr McKenzie submitted an ABS Incident & Hazard Report advising of an incident on 27 May 2022 where he experience pain in his right wrist. Mr McKenzie had no time off work and continued working. Describing the event: Hands were a little cramped at the end of Friday. On Saturday there was some pain in both wrists and some throbbing in knuckles of both index fingers. As I had the following week off -unrelated to injury, with exercises, stretches and rest it has mostly subsided
On 15 August 2022 Mr McKenzie submitted an ABS Incident & Hazard Report advising of an incident on 13 August 2022 where he experience pain in both his left and right wrist and hand. Mr McKenzie had no time off work and continued working. Describing the event: Right wrist became sore and I had disomfort/throbing in index and little finger knuckles. Did further exersizes at work and home over last few days - as per previous recommended treatment when I had pysiotherapy for same issue earlier.
Mr McKenzie submitted a Comcare claim on 10 July 2023 for Bilateral hand pain, tenosynovitis, when he was undertaking mouse and keyboard work. Mr McKenzie reported that he first noticed his symptoms/injury on 31 May 2018, and his injury happened as:

Nominated Treating Practitioner Case Conference: > > Konekt attended a case conference with Mr McKenzie and Dr Ann Thorne on 2/08/2023. The outcome and action plan derived from the case conference is as follows: > > Dr Thorne advised that the current diagnosis for Mr McKenzie's injury is bilateral tenosynovitis of the hands. Dr Thorne agreed with the comments of Mr Liam Williams (hand therapy) that were provided from a phone conversation with Konekt, stating that it is difficult to provide a more specific diagnosis due to the nature of the presentation. > > Dr Thorne advised that it is difficult to give a timeframe for prognosis, full recovery, and full RTW due to the long history of Mr McKenzie's pain presentation. Dr Thorne also noted that it is likely that Mr McKenzie may experience further aggravations of pain in the future. > > Mr McKenzie advised that his bilateral hand pain has improved since being on reduced hours although has got slightly worse with the increase from 2 to 3 days per week. > > Mr McKenzie noted that he has been receiving hand therapy input every 2 to 3 weeks which he feels is helping. > > Dr Thorne advised Mr McKenzie to continue with regular fortnightly engagement with hand therapist to provide support and recommendations as he commences through a gradual RTW. > > Mr McKenzie advised that his onset of pain at work can be from 20 to 60 minutes depending on the demand for the day. Mr McKenzie explained that the pain is usually worse in the afternoon. > > Dr Thorne advised that she supported the proposed RTW plan, indicating a trial of 5 days per week at the attendance of reduced hours with additional breaks. All parties agreed that each stage of the plan would need to be progressed within Mr McKenzie's pain tolerances. > > Dr Thorne and Mr McKenzie agreed that to better manage pain symptoms and intensity throughout the day, Mr McKenzie should increase his rate of breaks to be every 30 minutes for 2-3 minutes. Mr McKensie noted that he is happy to continue with a 5 minute break every hour during the morning hours. > > Action plan: > > • Dr Thorne to issue a Certificate of Capacity for the proposed RTW plan starting 07/08/2023. > > • Mr McKenzie to continue with fortnightly engagement with Hand therapist. > > • Mr McKenzie to take regular breaks during working hours every 30 to 60 minutes. > > Feedback from Medical Practitioner on ODG: > > As noted above, Dr Thorne advised that it is difficult to give a timeframe for prognosis, full recovery, and full RTW due to the long history of Mr McKenzie's pain presentation. Dr Thorne also noted that it is likely that Mr McKenzie may experience further aggravations of pain in the future.

SUMMARY AND ASSESSMENT > > Mr McKenzie is a 45-year-old man, suffering from somewhat unusual pain in the base of the palm of both wrists, and more recently in addition to this, pain over the knuckles of both his hands. Even more unusual is there are no physical signs accompanying his symptoms. Tests for inflammatory joint disease and plain x-rays are normal. > > The discomfort is kept under control by modification of activity as the best method. Stretching and strengthening exercises for the hand and wrist seem to also contribute a little to helping him control the symptoms. > > 1. Please provide a specific diagnosis for the condition Mr McKenzie is suffering > > from including; > > (a) Your prognosis for Mr McKenzie's claimed condition; > > (b) The clinical signs and symptoms that support your diagnosis > > I am unable to provide a specific diagnosis for the condition Mr McKenzie is suffering from. I think the closest I can get to is calling what he has as an overuse syndrome. There does not appear to be any inflammation associated with his condition, so it is difficult to call it a synovitis or a tendinitis or any other itis which would indicate inflammation. > > In my opinion, the prognosis for his condition is that it will continue when he is doing repetitive work with his hands and wrists. It will settle when he rests. He can fix some of the symptoms under control with some physiotherapy and every therapy like treatment. > > There are no clinical signs that would help substantiate a more definite diagnosis, nor any imaging or blood tests that would help. > > The provisional diagnosis of an overuse syndrome is based on a direct relationship to how much fine manipulative work is done by the hands and the wrists. > > 5. Is there a significant causal connection between the claimed condition and Mr McKenzie's employment with Australian Bureau of Statistics? Please provide as much detail as possible regarding the connection to Mr McKenzie's employment. > > I believe there is a significant causal connection between the claimed condition and Mr McKenzie's employment with the ABS. It is related to his data entry work. The more he does, the more pain he has. > > 10. In your opinion, would Mr McKenzie's suffer from the claimed medical condition irrespective of the employment contribution, if employment is considered a contributing factor? > > In my opinion, Mr McKenzie would suffer from the claimed medical condition irrespective of the employment contribution, if the employment involved the same sort of activity of the hands and wrists as does the work at ABS.

1. In your opinion, has Mr McKenzie suffered an injury or diagnosable condition of the hands/wrists? Please provide a short description of the diagnosed condition, including the clinical signs and symptoms or diagnostic test results which support your conclusion. > > The diagnosis of overuse syndrome, or repetitive strain injury has been used for the very reasons that there were no clinical signs or diagnostic test results which support the conclusion of any other more definable diagnosis. I pointed this out in the original report. > > I am into evidence-based medicine, and it frustrates me that in this particular case, I cannot offer a more accurate or pathology based diagnosis. > > So why do I describe the diagnosis here is overuse syndrome? The answer to this is that the only evidence we do have is based on the history provided by the worker: he states that when he was given an extra overload (overload being his term, not mine) on work that involves data input and the use of his hands and wrists, he then developed this pain that he described. > > Apart from pointing out where he experienced his discomfort, which at that time was over the radiocarpal joints on both sides initially, and then later at the bases of the MCP joints of all lesser fingers, there were no physical signs to elicit. > > By this I mean there was no local tenderness and there was a tull range ot movement in all joints. There was no sign of inflammation i.e. swelling. > > I look for other clinical evidence of syndromes that often presents with overuse: things such as carpal tunnel syndrome or de Quervain's disease, but none were present. > > Appropriate investigations had been done including haematological tests for inflammatory joint disease, and plain x-rays, and these were normal. Given his lack of clinical signs, I think further tests such as an MRI scan or ultrasound would also be normal. > > So one is left with a diagnosis that simply describes his condition: he describes having the symptoms when he has to use his wrist and hands repetitively for a longer period than he can cope with. > > 2. In your clinical opinion, do you consider that the described mechanism of injury being keyboard and mouse use has caused or significantly contributed to the development of the condition you have outlined in Q1? Please detail your reasoning and provide Level I or II medical evidence which supports your conclusion. > > It is generally accepted that repeated activities involving the hands and wrists, and indeed the forearms and shoulders, can lead to pain. The precise causal effect is not always understood. > > I have already said it, but I will repeat it; the only evidence we have that links the work he did to the symptoms he has is Mr McKenzie's version of the history. This would suggest a causal relationship, but we have no proof of that. > > Certainly, the repetitive use of the keyboard and mouse has been, in the past, related to the development of pain in the wrists and hands, and been accepted as a cause.

History of presenting complaint: Mr McKenzie, a 46-year-old male, presented with bilateral chronic hand and arm pain of 5 years' duration. The pain described to began when his work role changed to a full-time data entry position. There was self described significant interference with his work capacity. He described the pain in his bilateral forearms as a burning sensation, at times worse on the right side than the left, however occurring bilateral. The major trigger was described computer work. He had described previously that he had difficulty falling asleep due to pain, but at the time of initial consultation, he reported sleeping reasonably well due to his time off work (3 months prior to initial consultation). > > Clinical examination findings: The clinical examination findings were consistent with a chronic pain condition with the development of nociplastic pain and clinical hyperpathia. These findings suggest altered processing at the level of the spinal cord for pain pathways. The examination findings were not consistent with an inflammatory joint condition or osteoarthritis. > > Consistency of findings with reported symptoms: In my opinion, the findings on history and examination were consistent with Mr McKenzie's reported chronic pain complaint. I did not find any discrepancies, and with treatment for chronic pain, he has shown improvement. > > Diagnosis of current physical condition and aetiology: The diagnosis is chronic pain, nociplastic type, affecting the bilateral forearms, wrists, and hands. The aetiology appears to be related to repetitive computer work, particularly data entry tasks, however referral to contemporaneous medical records is recommended. > > Relation to employment: I believe that Mr McKenzie's employment may have contributed to his chronic pain condition and is potentially the primary link. However, as I was not consulting with him at the onset of symptoms, I refer the reader to contemporaneous records for further clarification. > > Non-work-related factors: I would refer to contemporaneous records for further information regarding any social or sporting injuries, accidents, or complaints that may have contributed to Mr McKenzie's condition. He described not being able to participate in these activities, including bike riding and rock climbing, in the time we have consulted due to his chronic pain condition. > > Osteoarthritis: I do not find Mr McKenzie to have a rheumatological diagnosis, including osteoarthritis. I would defer to expert rheumatologists for their opinion on this matter. > > Nature of the condition: Based on the information available to me from the past 12 months, Mr McKenzie's condition appears to be a chronic pain syndrome that developed in relation to his employment. It does not appear to be a recurrence, aggravation, or acceleration of a pre-existing condition, but rather a new condition that developed over time due to work-related activities, however I have the information of the past 12 months at my disposal, and the client description of history, I have reviewed the investigations as summarised in this report. > > Pre-existing condition: Not applicable, as there is no clear evidence of a pre-existing condition based on the information provided to me. Please refer to answers above. > > Stabilisation of condition: I believe Mr McKenzie's condition has stabilised. However, his chronic pain condition is likely to persist for the foreseeable future. > > Recovery status: Mr McKenzie has partially recovered. While a chronic pain diagnosis tends to persist, there may be fluctuations in the degree of dysfunction. Mr McKenzie has shown improvement with treatment, but continues to experience some level of pain and functional limitation. > > Overall prognosis: The overall prognosis for Mr McKenzie is somewhat favourable, particularly if he continues to have support to access multidisciplinary chronic pain treatment. While the ideal scenario would be a return to his previous level of function and work duties, it is uncertain whether this will be fully achievable. We have seen a positive return to the workplace with 12 months of treatment and a gradual increase in his work capacity. However, he is still far from full-time work duties in data entry. Support for exploring alternate work options may be beneficial in facilitating a return to full-time hours. > > Comments on Dr Reiter's rheumatological report: I have read the rheumatological summary from Dr Reiter, and I agree with the summary regarding the lack of rheumatological diagnoses. As a fellow of the Faculty of Pain Medicine with specific training in chronic pain, I have diagnosed Mr McKenzie with a chronic pain condition with clinical features that are consistent with nociplastic pain (previously often referred as central sensitisation, refer the reader to IASP guidelines) and clinical hyperpathia. I would expect that another rheumatologist, unless they also have a dual fellowship in pain medicine, would likely provide a similar assessment to Dr Reiter's. I did not find a diagnosis of rheumatological condition for this client.

4. In your opinion, does Mr McKenzie's history of symptoms suggest that his condition is more appropriately categorised as an aggravation of "central sensitisation and hyperpathia", rather than a primary diagnosis? > > I would agree that Mr McKenzie's history of symptoms suggests that his condition is more appropriately categorised as central sensitisation and hyperpathia, rather than a primary diagnosis, as I was not on history and examination able to ascertain a primary diagnosis for his upper limbs. > > 5. In your previous report, you state that Mr McKenzie's condition is related to his employment as he experiences pain in his hands when keying and doing mouse work. Please provide specific epidemiological studies about the relationship between chronic pain syndrome in the hands and repetitive keying and mouse work, with commentary on how the findings apply to Mr McKenzie's circumstances. > > It is only related to his employment in that he experiences pain when he uses his hands when keying and doing mouse work, as his chronic upper limb [pain increases in intensity whenever he uses his hands for any activities. > > I have no epidemiological studies about relationship between chronic pain syndrome hands, and repetitive keying and mouse work. It should be noted that it is simply that he experiences his symptoms when he uses his hands and therefore, he experiences his symptoms when he uses his hands to key and mouse work. I do not consider it is an exacerbation or an aggravation. > > 6. Mr McKenzie reported that he began experiencing pain around 2-3 months after commencing his role with Australian Bureau of Statistics (ABS) in 2018. Please comment on whether any contribution from Mr McKenzie's employment could be considered 'significant' within this timeframe. > > It is my opinion that his employment with Australian Bureau of Statistics is not a significant contribution to his upper limb symptoms. > > 7. In your previous report, you state that "Any use of his hands causes him to experience pain" and "the more he uses his hands the more it increases in intensity". The evidence indicates that Mr McKenzie reports increased symptoms when completing non-employment-related activities involving use of his hands, including cycling, mowing the lawn, cleaning and driving. Please explain the contribution (if any) of these non-employment related activities to Mr McKenzie's condition. > > All activities contribute to his pain including non-employment and employment related activities as again using his hands causes him to experience an increase in his upper limb chronic pain and the more, he uses his hands the more his pain increases in intensity, which is due to his own, underlying, constitutional chronic upper limb pain condition. > > 8. Please comment on the significance of Mr McKenzie's employment in contributing to his condition, compared to non-employment related activities. > > I do not consider his employment, or his non-employment are contributing to his condition, except that he simply experiences his pain when he uses his hands and it increases in intensity the more that he uses his hands. > > 9. In your previous report you stated that, at the time of your assessment on 4 November 2024, Mr McKenzie had recovered from any proposed injury or condition resulting from his employment. Do you maintain this opinion? If so, do you consider any continued symptoms to be the result of non-employment related factors? > > Yes, I do maintain that any proposed employment injury has resolved. I consider that his continued symptoms are due to his own, underlying, constitutional condition and it bears no relationship to his employment. > > 10. Any other comments you would like to make in response to the report of Dr Jacquelyn Nash dated 19 March 2025. > > I have no comments to make in response to the report of Dr Jacquelyn Nash dated 19 March 2025 except that she states "I believe that Mr McKenzie's employment may have contributed to his chronic pain condition and is potentially the primary link. > > However, as I was not consulting with him at the onset of symptoms, I refer the reader to contemporaneous records for further clarification". This would indicate to me that she considers his employment to not be significant contributing factor to his chronic upper limb pain.

I sustained an injury at work in 2018 and advised my manager as soon as I was aware that I had sustained an injury and sought medical advice as soon as practicable. I believe my injury was caused by excessive keyboard and mouse work for the timeframe I had to complete this task, work that only I did at the time, no one else in the same team was doing this. The time prior to that week, I was doing the same work as other new recruits in the team and no issues with the work. I submitted an ABS Incident Report (known as an Ireis report) as soon as practicable as I am required with the ABS and spoke with both my manager and a WHS representative of the ABS. I was asked if I wanted to get early intervention where the ABS would cover initial treatment- which I did. I was advised that I could seek Comcare at a later time without detriment. I saw a doctor and sought therapy. I performed the tasks that I was given for therapy. I had no reason to question what a doctor or therapist instructed or advised me or diagnosed. I had some time off and resumed work - albeit with increased focus on rests and breaks and monitoring of symptoms. At this time, I was tasked with something different from everyone else again that was not time-sensitive. After a short period of time, I was moved to another team & area (that had less keyboard/mouse work) and was no longer managed by the same manager. I would continue to manage my symptoms. When that team was disbanded, I was moved again to a new team in 2019. At this new team my symptoms regressed and sought help from WHS representative again, where I sought a desk assessment and ergonomic mice/keyboards etc. Throughout this time I had been managing my symptoms and was able to work around any issues for the most part. I was moved to another team in 2022. In 2022 my tasks had become more keyboard/mouse oriented again, and I again lodged an ABS Incident report sighting further regressions and my intention to seek further treatment if it didn't subside. Later in 2022 I submitted another Incident report and advised my manager that I would seek treatment from the ABS. Note that this was done on the 15/9/2022, however by the 4/11 my manager had 3 official reminders from WHS and multiple requests by me to complete the report. I had told my manager specifically that I was again seeking early intervention to help with the cost of treatment. As he had continued to ignore these requests - I sought direct help from our Director, and requested to be moved from this team as I felt that my manager was not taking my health seriously. I also contacted the contact at PMAW that had managed me from previous Incident reports. My director offered me a lower position in another area. When I spoke to the management of the new team, they were not aware of my medical history. When the new role was explained to me, I expressed concerns that the new role may not be suitable due to my injury. I advised my new team that I would seek treatment from Comcare if things didn't improve - which I did in 2023. I was made to participate in a Rehabilitation Assessment report via Konekt. They provided a schedule for rehabilitation, and management advised that if I didn't recover within the time frame suggested by Konekt, they would further reduce me back to a substantive APS3, which is ultimately what has happened. Comcare asked for me to go to appointments, which I had done. I was not asked to see a pain specialist. In September, a Comcare determination declined liability for compensation in September 2023. I was advised that I didn't have enough evidence to satisfy Comcare. I was advised I could get scans and/or get an appointment with an expert. I saw a hand surgeon and I asked for a review. Comcare's review upheld their determination in January 2024. On advice from my GP, I sought an appointment with a pain specialist at Pain Matrix for a diagnosis and rehabilitation, if possible. Dr Nash has provided a diagnosis and treatment, which I have been positively responding to. I contend that the determination by Comcare was flawed and unfair and that I can show that I have met the requirements needed in the relevant sections of Safety Rehabilitation and Compensation Act 1988. Comcare in their reconsideration of Determination (letter dated 23 January) state that the issues they need to decide are:

Section 5A Definition of injury, where injury means a disease, physical injury or mental injury, or aggravation of an injury. But does not include disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner with respect to the employee's employment. - I believe that the administrative action taken (lack thereof) was not always reasonable - the fact that after almost 2 months my manager had not actioned the incident report after multiple reminders and pleas and that I had to go directly to PMAW and the director to force change. When I was moved to the IST team, I would also argue that I was moved to an unsuitable position as I had anticipated to them. The IST team were not made aware of my health issues prior to the move and once notified, they chose to keep me in that position regardless. It should also be noted that there were no written records returned by the summons of my asking the director for help, nor why, as evidenced by the IST team having no idea of my situation. I would also argue that the rehabilitation program devised by Koneck was not adequate, with a much too ambitious expectation of progressive rehabilitation. It failed to alleviate my symptoms, and the rehabilitation was not altered reasonably to suit when this was apparent. I also had contradicting desk assessments for my monitor height, one assessment suggested that I needed to lower my monitors and a later stated that the monitors at work were not high enough for me - and that I had to "compromise" and use the highest monitor(s) in my section area - the monitor arms were not altered or changed to be set to the ideal height for my requirements. I would also draw to the fact that all monitor arms were the same type/model and only minor differences were actually observed between them all. Lastly when I reported my initial issues, I had spoken about how the mice were not comfortable - I cited the mice being slippery and gunked up and difficult to move as the pads were no longer slippery. After my incident report there was a section wide notice regarding workstation setups and our team had a meeting about how we could ask the IT section to replace mice or keyboards - this was not divulged previously.

25. The Tribunal is not bound by the rules of evidence (s 33 Administrative Appeals Tribunal Act 1975 (Cth)) and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force: Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482, 492, referring to Consolidated Edison Co v National Labour Relations Board [1938] USSC 176; (1938) 305 US 197, 229; The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 256. The drawing of an inference without evidence is an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355-356; Repatriation Commission v Maley [1991] FCA 474; (1991) 24 ALD 43 (Full Court). Similarly such error is shown when the Tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association [1985] FCA 232; (1985) 60 ALR 717, 722 a Full Court of this Court held that it was unjustifiable, and therefore legally erroneous, for a Tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter. > > 26 It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the Court or Tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The Tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted.

Was there an 'aggravation of an ailment'? > > As Deputy President Humphries recognised in Millar and Comcare [2019] AATA 4973 ('Millar') at [141], prior to the High Court's decision in Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 ('May'), there existed a long line of authorities in which it was held that an aggravation of symptoms of an existing condition may be sufficient to amount to an 'injury' for the purposes of the SRC Act, notwithstanding that there is no change to the underlying pathology. > > In Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 378 the Full Federal Court (Evatt, Sheppard and Kelly JJ), relying on Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 634, concluded: > > ... each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. > > The general conclusion, that pain resulting from or increased by work without worsening an underlying condition can be an aggravation under the SRC Act has consistently been recognised by the Federal Court. For example in Commonwealth Banking Corporation v Percival [1988] FCA 240; (1988) 20 FCR 176, where the Full Federal Court (Davies, Sheppard and Ryan JJ) noted at 180 that: > > It is indeed fundamental to compensation law that a symptom of an injury or a disease is part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. > > Other authorities in which similar statements have been made by the Federal Court and the Tribunal include Tippett v Australian Postal Corporation [1998] FCA 335; Mellor and Australian Postal Corporation [2009] FCA 504 at [39]; Rutledge and Comcare [2011] AATA 865; Fletcher and Comcare [2015] AATA 430; Comcare v Reardon [2015] FCA 1166 at [31], Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 at [48], Skobelkin-Mulcair and Comcare [2019] AATA 1054 at [82]- [83]; Stefaniak and Comcare [2019] AATA 1866 at [64]- [65]; Knox and Comcare [2019] AATA 2196 at [133], and Wood and Comcare [2019] AATA 981 at [62]- [63]. > > In May, the majority of the High Court observed as follows: > > 49. It is against that background that the Act requires the tribunal of fact to give consideration to 'the precise evidence, on a fact by fact basis, ... accepted at trial' and then to ask certain questions in order to determine whether an employee is suffering a 'disease' or an 'injury (other than a disease)'. > > 50. First, does the evidence amount, relevantly, to something that can be described as an 'ailment', being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth? > > 51. If the answer to both those questions is 'Yes', there is a 'disease' within par (a) of the definition of 'injury'. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is 'No'. > > 52. If there is not a 'disease' within par (a) of the definition of 'injury', the tribunal of fact next inquires whether there is an 'injury (other than a disease)' within par (b). The third question is - does the evidence demonstrate the existence of a physical or mental 'injury' (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an 'injury (other than a disease)'. The language of judgments should not 'be applied literally to facts without further consideration of what is conveyed by the reasoning" in the cases from which it is derived, or without regard to the text and scheme of the Act ...' > > Not sufficient for an employee merely to feel unwell > > 57. The Full Court concluded that the inquiry demanded by the statutory definition of 'injury' was 'whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind' (emphasis added). To the extent that conclusion suggested that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first or third questions set out above, that conclusion should be rejected. > > 58. That is because, first, it overlooks that the Act provided that the appellant was liable to compensate in respect of "an injury" and that the focus of the Act is on 'an injury'. > > Second, it overlooks that the Act draws an important distinction between "disease" and "injury (other than a disease)" and that "disease" and "injury (other than a disease)" are part of different limbs of the definition of "injury" in s 4(1). Each limb deals with a separate basis for something being an "injury". That is the reason for separate questions. > > Third, as seen earlier, the word 'injury' in 'injury (other than a disease)' has a different meaning from the defined term "injury" in s 4(1) - it means "injury" in its primary sense. That necessarily requires consideration of the 'precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change'. > > Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the "injury (other than a disease)" limb of the definition of "injury", unless that employee can satisfy the tribunal of fact that he or she has suffered an "injury" (in the primary sense of the word), s 14 of the Act will not be engaged. > > The 'nature and incidents of the physiological [or psychiatric] change' will determine whether there was an 'injury (other than a disease)'. The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell. > > (Emphasis added, references omitted.) > > The Respondent argues that the High Court's decision in May, particularly the passage highlighted above in paragraph [57] of the majority's decision, casts doubt on whether a complaint characterised by the experience of symptoms without an accompanying physiological change can amount to a 'disease' pursuant to s5B.[237] The Respondent further relies on Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 ('Canute') in support of its contention that the High Court's recent jurisprudence casts doubt on the line of authorities cited above, which find an aggravation in circumstances involving a lack of persuasive evidence of an identifiable change to the underlying pathology of the relevant psychological condition. It argues that the High Court emphasised in May and Canute that: the discernment of a frank injury against a backdrop of pre-existing disease depends upon the existence of some identifiable physiological change or disturbance which, in turn, necessitates a 'fact by fact' analysis of the nature and incidents of what occurred in the body (or psyche) of the claimant employee.[238] > > It further argues that the SRC Act adopts the same test in circumstances in which the basis of the claim consists of alleged aggravation of pre-existing disease, rather than the onset of a frank injury.[239] > > There is recent Tribunal authority for the arguments made by the Respondent. In Williamson and Comcare [2019] AATA 4774, Deputy President Pascoe held, citing May, at [45]: > > Subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, is simply insufficient to meet the requirements of the Act. > > As Deputy President Humphries noted in Millar at [142], this decision suggests that principles contained in the long line of authorities cited above, 'are indeed being revisited'. > > The Tribunal accepts the Respondent's contention that, the High Court's decisions in May and Canute support a finding that, in circumstances where the Applicant has a pre-existing condition or disease, in order for there to be an 'aggravation' of such an ailment for the purposes of the SRC Act, there must be evidence of an 'accompanying physiological or psychiatric change'. The majority's decision in May in particular emphasises that it is not sufficient for an employee merely to assert that they are feeling unwell or subjectively experiencing symptoms. The evidence must demonstrate that, in addition to symptoms or pain experienced by the employee, there is a discernible or diagnosable physiological or psychiatric change to the employee's body or psyche.

110 The statutory definition of "ailment" in s 4(1) of the SRC Act should be "approached on the basis that Parliament said what it meant and meant what it said": Owners of the ship "Sin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 420. The definition of "ailment" refers to "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". These are words of ordinary meaning. A requirement that an ailment be "physical or mental" corresponds to the elaboration of "injury (other than a disease)" in s 4(1) as being "a physical or mental injury" and should not be regarded as words of limitation. The key point which I would understand their Honours to identify by [57] of the joint judgment in MRCC v May is that even with an ailment, "there must be more than an assertion by an employee that he or she feels unwell": at [62]. Even then, I would say that in relation to "ailment" this statement would fall into the category of general guidance, and that the text of the Act has to be applied to the circumstances of individual cases as presented by the evidence, which will vary immensely. In the case of the onset of migraines or chronic headaches, it might readily be accepted by a trier of fact in a particular case that such an ailment is not the product of "a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state": cf, MRCC v May at [52]. Whether that is so will depend upon the evidence. However, there is nothing in the definition of "ailment" that invites the application of these criteria, which have been developed to assist triers of fact in borderline cases to identify whether or not a condition is an "injury" in the primary sense. Further, to require that there be an "identifiable physiological change" as an element of an "ailment" would distort the defined term "ailment" by importing a characteristic that is the hallmark of an "injury" in the primary sense, thereby narrowing the distinction between them.

Critically, the Tribunal did not have regard to the fact that subjectively experienced symptoms, without an accompanying physiological or psychiatric change, are insufficient to found an injury or disease under the SRC Act. In its recital of the evidence at [24]-[29], the Tribunal made a number of observations of the evidence concerning the respondent's symptoms: > > (a) "The [respondent] submits that the ailment was 'first noticed' in August 2016 and the [respondent] first sought treatment at about the same time." > > (b) "The report [prepared by Dr Murphy on 28 December 2017] gives the [respondent's] symptoms an onset date of 8 August 2016 and an assessment date of 15 December 2017, with the date last worked being 'November 2017'". > > (c) "There is a report by Associate Professor T dated 9 January 2018. The report states a 'symptom onset date' of 8 August 2016, an 'assessment date' of 21 December 2017 and a 'date of work cessation' of 10 November 2017. > > (d) "In the report's summary and assessment it states that prior to 2016 the [respondent] had no significant physical or mental health problems, and that during 2016 'it would appear some work-related stressors accumulated such that in 2017 [the respondent] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence'". > > This suggests that the Tribunal relied almost solely upon evidence as to the respondent's initial, self-reported symptoms. As a result, it has wrongly conflated the respondent's experience of symptoms of a disease with the existence of an underlying disease or aggravation of it that resulted in death, incapacity for work, or impairment. The experience of symptoms was insufficient to support a finding that there was a compensable injury in August 2016. > > Further, having found that the respondent suffered a disease, it was incumbent on the Tribunal to consider whether the ailment (or aggravation thereof) was contributed to, to a significant degree, by his employment. > > That required the Tribunal to assess whether the standard specified in s 5B(3) was met. That section (as set out earlier in these reasons) provides that "significant degree" means "a degree that is substantially more than material". Under a previous definition of "disease", it was held that the inclusion of the term "material" "imposes an evaluative threshold below which a causal connection may be disregarded": Comcare v Canute (2005) 148 FCR 232; [2005] FCAFC 262 at [68] (per French (as his Honour then was) and Stone JJ). The current s 5B(3) requires "a claimant to prove that his or her employment was 'more than a mere contributing factor in the contraction of the disease'": Explanatory Memorandum to the current SRC Act. > > There is nothing in the Tribunal's reasons which indicates that it applied this test in determining that the respondent suffered an injury within the meaning of the SRC Act in August 2016. It did not weigh up or engage with the competing evidence before it concerning the various potential contributing factors to the respondent's condition. > > It was necessary for the Tribunal to assess the evidence, including the medical opinions, and deal with how the evidence demonstrated that the respondent suffered an injury within the meaning of s 5A of the SRC Act. This evaluation is not evident in the reasons. > > In my view, the Tribunal did not correctly apply the legal tests required by the SRC Act. That is an error of law.

[15]

Counsel contended that Mr McKenzie's self-reported symptoms of pain did not meet the statutory requirements for a finding of a disease in accordance with Section 4(1) and section 5B of the SRC Act. 16. Counsel accepted that Mr McKenzie's pain had been given a "diagnosis" which was agreed upon by both Dr Reiter and Dr Nash, of a chronic pain condition with clinical features that are consistent with nociplastic pain (previously often referred as central sensitisation,) and clinical hyperpathia. However, Counsel argued that this still did not meet the test of an injury or disease under the SRC Act, as the label was merely the current description of chronic pain with no identifiable pathophysiological cause. 17. Counsel contended that Dr Reiter and Dr Nash had both confirmed that Mr McKenzie did not have any rheumatological, including osteoarthritis diseases nor bilateral tenosynovitis, or indeed any pathological condition to account for the pain he was experiencing in his hands. Counsel submitted more specifically, that Mr McKenzie had no evidence to show a pathological or clinical basis for any diagnosed condition such as osteoarthritis, tenosynovitis, tendonitis, epicondylitis, radial tunnel syndrome, carpal tunnel syndrome, or inflammatory arthritis. 18. Counsel submitted that Dr Reiter's evidence had been that nachoplastic pain is diagnosed on the basis that there's an altered nervous system function that disrupts how the central nervous system processes pain signals, leading to increased sensitivity and pain that is disproportionate to pathological cause. Additionally, Hyperpathia is diagnosed when there's an abnormally painful response to a stimulus, which means that the person has a reduced pain threshold. 19. Counsel contended therefore, that while there is a label for Mr McKenzie's reports of pain from Dr Nash and agreed with by Dr Reiter having regard to the authorities in May, Wuth and De Tarle in particular, Mr McKenzie's subjective pain symptoms, even with those labels, does not meet the statutory requirements for the definition of an ailment or an aggravation of an ailment in Section 4(1) of the SRC Act. 20. Counsel submitted that, as there was no evidence of any pathophysiological change to Mr McKenzie's hands, Dr Reiter's evidence had expressly discounted the possibility of an aggravation of any condition affecting his hands. 21. The Respondents submitted there was insufficient evidence before the Tribunal to conclude that the requirements of Section 5B of the SRC Act have been met, as there was no evidence outside of Mr McKenzie's self-reporting that any such ailment or aggravation thereof was contributed to a significant degree by his employment at the ABS. 22. Counsel submitted that for Mr McKenzie to be successful with respect to Section 5B of the SRC Act, he would need to provide probative evidence to the effect that there was a significant contribution from his employment. Counsel referred the Tribunal for guidance in relation to what a significant degree means to her honour Justice Katzman's judgement in Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187, where her Honour said there needed to be a finding of a contribution to a degree that is substantially more than material.

1. In your opinion, has Mr McKenzie suffered an injury or diagnosable condition of the hands/wrists? Please provide a short description of the diagnosed condition, including the clinical signs and symptoms or diagnostic test results which support your conclusion. > > The diagnosis of overuse syndrome, or repetitive strain injury has been used for the very reasons that there were no clinical signs or diagnostic test results which support the conclusion of any other more definable diagnosis. I pointed this out in the original report. > > I am into evidence-based medicine, and it frustrates me that in this particular case, I cannot offer a more accurate or pathology based diagnosis. > > So why do I describe the diagnosis here is overuse syndrome? The answer to this is that the only evidence we do have is based on the history provided by the worker: he states that when he was given an extra overload (overload being his term, not mine) on work that involves data input and the use of his hands and wrists, he then developed this pain that he described. > > Apart from pointing out where he experienced his discomfort, which at that time was over the radiocarpal joints on both sides initially, and then later at the bases of the MCP joints of all lesser fingers, there were no physical signs to elicit. > > By this I mean there was no local tenderness and there was a full range of movement in all joints. There was no sign of inflammation i.e. swelling. > > I look for other clinical evidence of syndromes that often presents with overuse: things such as carpal tunnel syndrome or de Quervain's disease, but none were present. > > Appropriate investigations had been done including haematological tests for inflammatory joint disease, and plain x-rays, and these were normal. Given his lack of clinical signs, I think further tests such as an MRI scan or ultrasound would also be normal. > > So one is left with a diagnosis that simply describes his condition: he describes having the symptoms when he has to use his wrist and hands repetitively for a longer period than he can cope with. > > 2. In your clinical opinion, do you consider that the described mechanism of injury being keyboard and mouse use has caused or significantly contributed to the development of the condition you have outlined in Q1? Please detail your reasoning and provide Level I or II medical evidence which supports your conclusion. > > It is generally accepted that repeated activities involving the hands and wrists, and indeed the forearms and shoulders, can lead to pain. The precise causal effect is not always understood. > > I have already said it, but I will repeat it; the only evidence we have that links the work he did to the symptoms he has is Mr McKenzie's version of the history. This would suggest a causal relationship, but we have no proof of that. > > Certainly, the repetitive use of the keyboard and mouse has been, in the past, related to the development of pain in the wrists and hands, and been accepted as a cause.

At a glance

Court

Decision date

Source

Judgment (126 paragraphs)

McKenzie and Comcare (Compensation) [2026] ARTA 392 (20 March 2026)

Parties

Legislation Cited (4)

Cases Cited (13)