Adams and Comcare (Compensation) [2022] AATA 3404 (18 October 2022)
Division:GENERAL DIVISION
File Number: 2018/6286
Re:Susan Adams
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:A G Melick AO SC, Deputy President
Date:18 October 2022
Place:Hobart
I set aside the decision and find that the Respondent is liable to pay compensation in relation to the temporary aggravations of forearm pain which occurred during the Applicant’s employment after 19 March 2018, being the date noted by the Applicant as when she first noticed her symptoms.
...................[sgd].....................................................
A G Melick AO SC, Deputy PresidentCatchwords
Workers’ Compensation (Cth) — Injury — Whether injury arose out of or during the course of employment — Non-specific upper limb pain — Idiopathic pain — Whether physiological change necessary to establish disease — Whether experience of symptoms constitutes an aggravation of an injury – Decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Arnotts Snack Products Pty. Ltd. v Yacob (1985) 155 CLR 171
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Commonwealth Banking Corporation v Percival [1988] FCR 176
Commonwealth and Beattie [1981] FCA 88
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Repatriation Commission v Yates [1995] FCA 1234
Tippett v Australian Postal Corporation [1998] FCA 335
Wuth and Comcare [2022] 260 FCR 89Secondary Materials
Morten Waersted, Therese N Hanvold and Kaj Bo Veiersted, ‘Computer work musculoskeletal disorders of the neck and upper extremity: A systemic review’ (2010) 11(79) BMC Musculoskeletal Disorders
Sigurd Mikkelsen, ‘Does computer use affect the incident of distal arm pain? A one year prospective study using objective measures of computer use’ (2012) 85 International Archives of Occupational and Environmental Health 139
A I Kryger, ‘Does computer use pose an occupational hazard for forearm pain; NUDATA study’ (2003) 60(11) Occupational Environmental Medicine.REASONS FOR DECISION
A G Melick AO SC, Deputy President
18 October 2022Introduction
The Applicant seeks review of a reconsideration determination dated 12 October 2018 (the reviewable decision) by Comcare (the Respondent) which affirmed a determination dated 3 August 2018 denying her compensation claim for “early osteoarthritis and some soft tissue pain”.
The Applicant was employed by Services Australia from July 2000 as a Services Officer Level 3. At the time of the hearing, she was 43 years old and had recently resigned from her role at Services Australia. The Applicant claims that her injury, affecting her fingers, wrists and elbows, gradually developed as a result of an extended period of overtime work she performed between late October 2017 to March 2018.
On 30 October 2018, the Applicant sought review of the reviewable decision by this Tribunal. It is the Respondent’s determination to deny liability for “early osteoarthritis and some soft tissue pain” that is the subject of this application for review.
Facts
The following facts are either agreed or not disputed.
The Applicant…
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- AGLC
- Adams and Comcare (Compensation) [2022] AATA 3404
- Case
- [2022] AATA 3404
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the Applicant's condition constituted an "injury" for the purposes of the relevant workers' compensation legislation, specifically whether it arose out of or in the course of her employment. This involved considering whether a physiological change was necessary to establish a disease, and whether the experience of symptoms, rather than a diagnosed disease, could amount to an aggravation of an injury. The Tribunal also had to assess whether the nature of the Applicant's work, including the intensity and duration of computer and phone use, and the ergonomic issues identified, contributed to her condition.
The Tribunal reasoned that an injury under the legislation does not necessarily require a distinct physiological change, and that the aggravation of a pre-existing condition or the experience of symptoms can constitute an injury. The evidence indicated that the Applicant's role involved repetitive fine motor skills and awkward postures, particularly with computer and phone use, and that ergonomic adjustments were made in 2011 to alleviate symptoms. Furthermore, the Applicant's testimony suggested that her symptoms significantly improved during periods of leave, indicating a link between her work and her pain. The Tribunal found that the cumulative effect of the Applicant's work duties, including the intensity of her role in the complex drugs unit and the ergonomic challenges, led to an aggravation of her condition, which constituted an injury arising out of or in the course of her employment.
The Tribunal set aside the Respondent's decision and substituted it with a determination that the Applicant had suffered an injury arising out of or in the course of her employment.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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