Adams and Comcare (Practice and procedure)

Case [2025] ARTA 51

Adams and Comcare (Practice and procedure) [2025] ARTA 51 (31 January 2025)

Applicant/s:  Susan Adams

Respondent:  Comcare

Tribunal Number:                2023/5607

Tribunal:Senior Member S Webb

Place:Canberra

Date:31 January 2025

Decision:Application dismissed.

…………………[SGD]……………………………..

Senior Member S Webb

Catchwords

PRACTICE AND PROCEDURE – workers’ compensation – liability for injury determined by Tribunal – subsequent incapacity claim – nature of ‘injury’ – no reasonable prospect of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Adams and Comcare (Compensation) [2022] AATA 3404
Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2
Beezley v Repatriation Commission [2015] FCAFC 165
Commonwealth of Australia v Snell
Kitoko v University of Technology Sydney [2021] FCA 360
NXPQ and Comcare (Compensation) [2021] AATA 4094
Oliver and Comcare (Compensation) [2018] AATA 1964
Quinn v Australian Postal Corporation [1992] AATA 668
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Woodhouse v Comcare [2021] FCAFC 95 [2019] FCAFC 57

Statement of Reasons

  1. Susan Adams experienced upper limb pain in her employment by the Commonwealth. She claimed compensation for injury. Comcare rejected the claim. On review of this decision, the Administrative Appeals Tribunal (AAT) decided that Ms Adams suffered from an ailment which was aggravated by her employment and Comcare was liable to pay her compensation for temporary aggravations of forearm pain which occurred during her employment after 19 March 2018.[1]

    [1] ADAMS AND COMCARE (COMPENSATION) [2022] AATA 3404 (LIABILITY DECISION).

  2. Subsequently, Ms Adams claimed compensation for incapacity in the period from 25 May 2020 to 15 April 2021. Comcare decided to refuse the claim by primary determination and on reconsideration. Ms Adams applied for review by the AAT.[2]

    [2] The application for review was lodged with the AAT under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed and, as of 14 October 2024, the AAT has been replaced by the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, from 14 October 2024, the Tribunal has jurisdiction to conduct the review under the Administrative Tribunal Act 2024 (ART Act).

  3. In the course of the proceedings, Comcare applied for the application to be dismissed under s 101 of the ART Act.

  4. The parties made submissions addressing related matters.

  5. Having heard the parties at an interlocutory hearing, it is this question of dismissal, alone, which is the subject of this decision.

  6. After conclusion of the interlocutory hearing, Ms Adams provided additional materials and submissions to the Tribunal. These have been taken into account in this decision.

    Facts

  7. Many of the background facts are set out in paragraphs [4] to [38] of the Tribunal’s liability decision. It is not necessary to recite these for present purposes other than to note Ms…

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Adams and Comcare (Practice and procedure) [2025] ARTA 51
Case
[2025] ARTA 51
Decision Date

CaseChat Overview and Summary

In the matter of Adams and Comcare, the Applicant, Ms Adams, sought review of a decision by Comcare to refuse her claim for compensation. Ms Adams alleged that she had suffered an upper limb work-related disorder, resulting from excessive data entry and processing work, which caused her osteoarthritis and soft tissue injury. The central issue before the Tribunal was whether Ms Adams' employment had significantly contributed to her underlying condition or merely aggravated her symptoms. This involved a detailed analysis of the medical evidence provided by Dr Cooley and Dr Dale.

The Tribunal carefully considered the medical evidence, ultimately preferring Dr Dale's opinion over Dr Cooley's. Dr Dale opined that Ms Adams' condition was systemic, with no correlation between her work activities and the causation of her non-specific upper-limb pain. He noted that her symptoms improved when she took leave, indicating her reduced tolerance for certain levels of activity. Dr Cooley, on the other hand, believed that excessive keyboard work could cause or aggravate Ms Adams' condition. However, the Tribunal found Dr Cooley's evidence less consistent and objective, leading to the conclusion that Ms Adams' employment had not significantly contributed to her underlying condition. While the Tribunal acknowledged that her employment had aggravated her symptoms at times, it found that these aggravations did not significantly contribute to any permanent incapacity.

Based on the evidence, the Tribunal set aside the reconsideration decision and found Comcare liable to pay compensation for the temporary aggravations of forearm pain that occurred during Ms Adams' employment. The Tribunal emphasized that any subsequent aggravations outside her employment were not compensable as her employment had not significantly contributed to her constitutional condition or rendered it more susceptible to debilitating pain. The decision underscores the importance of the Tribunal's role in distinguishing between mere aggravation of symptoms and a significant contribution to an underlying condition.

Orders

Orders of the court

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Background

Background to the litigation

After conclusion of the interlocutory hearing, Ms Adams provided additional materials and submissions to the Tribunal. These have been taken into account in this decision.Facts Many of the background facts are set out in paragraphs [4] to [38] of the Tribunal’s liability decision. It is not necessary to recite these for present purposes other than to note Ms Adams lodged a claim for compensation on 7 June 2018 in respect of an alleged osteoarthritis and soft tissue injury as a result of ‘data entry/processing - involving excessive keyboard and mouse work’. On review of Comcare’s reconsideration decision to affirm refusal of this claim, the Tribunal made the following observations and factual findings:102. As to what condition is suffered by the Applicant, I note the following:(a) In her report of 20 November 2019, Dr Cooley diagnosed an ‘upper limb work-related disorder’.(b) In that report she opined that it was possible that excessive keyboard work could cause that condition or aggravate a pre-existing condition.(c) However, in re-examination she changed “possible” to “probable” and I note that in an email dated 18 December 2019 she opined that the Applicant’s work contributed substantially to her condition.…108. When considering the evidence above I note in particular the following from the various witnesses:(a) Mr Campbell agreed that chopping vegetables, for example, would “similarly have a potential to aggravate symptoms in [the Applicant’s] right upper limb”. (b) Dr Cooley’s clinical impression as outlined at [68] was that of “early osteoarthritis the fingers and soft tissue pain”, with Dr Cooley opining the Applicant has “has an upper limb work related disorder”, with “little or no pain when she has been on leave”. Dr Cooley was of the view that the Applicant’s condition was unrelated to a pre-existing condition.(c) Dr Cooley opined that the Applicant’s pain episode arose after an increased in her work hours with overtime, both in terms of hours worked but also probably the intensity of the work as well. And I think the increased load in the setting of perhaps less than ideal posture has triggered the pain”.(d) Dr Cooley opined that the Applicant has had episodes of pain before that put her at risk of a further, more severe episode. (e) Dr Cooley did not record any complaint of pain from the Applicant after engaging in other non-work related activities, such as gardening or dog-walking. (f) Dr Cooley identified the cause of the Applicant’s pain to be a load increase leading to a maladaptive response. (g) At [88] Dr Dale opined the Applicant’s condition to be systemic, with no correlation between the type of activity undertaken and the causation of non-specific upper-limb pain. (h) Dr Dale noted that the removal of the exposure did not result in an impact on the progression of the condition, although he noted that her symptoms improved when she took leave. He considered this to be evidence of her reduced tolerance for a certain level of activity, regardless of what activity she was undertaking. (i) At [98], Dr Dale drew a distinction between the experience of pain, and the cause of that pain – he opined that just because the Applicant noticed her condition when undertaking certain activities, did not mean those activities were the cause of her condition.After consideration of the medical evidence set out above, I consider the evidence of Dr Dale to be more consistent and objective than that of Dr Cooley and accordingly, where there is conflict, I prefer the evidence of Dr Dale. In particular, I rely upon the evidence summarised at [108] above together with my comments at [102] and make the following findings:(a) the Applicant has undergone an exhaustive range of diagnostic examinations relating to her complaints of upper limb symptoms;(b) the Applicant suffers from non-specific upper limb pain and there has been no identified physiological change relating to those symptoms and there has been no alteration of the underlying pathology;(c) the Applicant is predisposed to experience pain in her upper limbs when performing some activities involving those limbs;(d) the Applicant has, at times, suffered an aggravation of her symptoms when peforming some tasks at her work place as well as when performing certain upper limb-related tasks away from her workplace;(e) the Applicant has a constitutional pre disposition to suffer pain when using her upper limbs to an extent beyond certain ill defined limits;(f) there has been no significant contribution to the Applicant’s underlying condition by her work;(g) the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment; and(h) the Applicant’s condition is one that reduces tolerance for work, rather than a condition that is caused by work. …132. As should be clear from my findings above, I do consider that the applicant had specific limited constitutional tolerances for certain kinds of work (which I am satisfied constitutes an ailment) which was prompted into pain symptoms when her work reached a certain intensity. The underlying pathology never changed but the work induced the symptoms. The question that arises is whether this constitutes an aggravation of an ailment for the purposes of the Act.… 157. … I find that the Applicant has not suffered a frank injury...158. As noted above, Dr Dale opined that the Applicant’s pain was caused by “her reduced tolerances”. He clarified that in his view, she has reduced tolerances. In Dr Dale’s opinion, he was satisfied that ‘we are dealing with a condition that reduces tolerance for work, rather than a condition that is caused by work”. 159. This condition meets the description of an ailment, although it derives only from the descriptions of the applicant and is not the subject of formal diagnosis ....160. I consider that the Applicant’s pain constitutes an ailment but consistent with my findings at referred to above, that ailment was not contributed to by any, let alone a significant, degree by her employment.161. However, I have found that her ailment was aggravated at times by her employment and, for those periods, she suffered a disease as defined by s 5B(b) of the Act and that disease was, at times, significantly contributed to by her employment.162. Because the Applicant’s employment has not significantly contributed to her constitutional condition and the aggravations have caused no change to her underlying condition, any subsequent aggravations outside of her employment are not compensable.163. … I have found that the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment and hence I do not find that the work-related aggravation has significantly contributed to any permanent incapacity.DECISION164. Accordingly 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.[Citations and references removed.]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On review of Comcare’s reconsideration decision to affirm refusal of this claim, the Tribunal made the following observations and factual findings:102. As to what condition is suffered by the Applicant, I note the following:(a) In her report of 20 November 2019, Dr Cooley diagnosed an ‘upper limb work-related disorder’.(b) In that report she opined that it was possible that excessive keyboard work could cause that condition or aggravate a pre-existing condition.(c) However, in re-examination she changed “possible” to “probable” and I note that in an email dated 18 December 2019 she opined that the Applicant’s work contributed substantially to her condition.…108. When considering the evidence above I note in particular the following from the various witnesses:(a) Mr Campbell agreed that chopping vegetables, for example, would “similarly have a potential to aggravate symptoms in [the Applicant’s] right upper limb”. (b) Dr Cooley’s clinical impression as outlined at [68] was that of “early osteoarthritis the fingers and soft tissue pain”, with Dr Cooley opining the Applicant has “has an upper limb work related disorder”, with “little or no pain when she has been on leave”. Dr Cooley was of the view that the Applicant’s condition was unrelated to a pre-existing condition.(c) Dr Cooley opined that the Applicant’s pain episode arose after an increased in her work hours with overtime, both in terms of hours worked but also probably the intensity of the work as well. And I think the increased load in the setting of perhaps less than ideal posture has triggered the pain”.(d) Dr Cooley opined that the Applicant has had episodes of pain before that put her at risk of a further, more severe episode. (e) Dr Cooley did not record any complaint of pain from the Applicant after engaging in other non-work related activities, such as gardening or dog-walking. (f) Dr Cooley identified the cause of the Applicant’s pain to be a load increase leading to a maladaptive response. (g) At [88] Dr Dale opined the Applicant’s condition to be systemic, with no correlation between the type of activity undertaken and the causation of non-specific upper-limb pain. (h) Dr Dale noted that the removal of the exposure did not result in an impact on the progression of the condition, although he noted that her symptoms improved when she took leave. He considered this to be evidence of her reduced tolerance for a certain level of activity, regardless of what activity she was undertaking. (i) At [98], Dr Dale drew a distinction between the experience of pain, and the cause of that pain – he opined that just because the Applicant noticed her condition when undertaking certain activities, did not mean those activities were the cause of her condition.After consideration of the medical evidence set out above, I consider the evidence of Dr Dale to be more consistent and objective than that of Dr Cooley and accordingly, where there is conflict, I prefer the evidence of Dr Dale. In particular, I rely upon the evidence summarised at [108] above together with my comments at [102] and make the following findings:(a) the Applicant has undergone an exhaustive range of diagnostic examinations relating to her complaints of upper limb symptoms;(b) the Applicant suffers from non-specific upper limb pain and there has been no identified physiological change relating to those symptoms and there has been no alteration of the underlying pathology;(c) the Applicant is predisposed to experience pain in her upper limbs when performing some activities involving those limbs;(d) the Applicant has, at times, suffered an aggravation of her symptoms when peforming some tasks at her work place as well as when performing certain upper limb-related tasks away from her workplace;(e) the Applicant has a constitutional pre disposition to suffer pain when using her upper limbs to an extent beyond certain ill defined limits;(f) there has been no significant contribution to the Applicant’s underlying condition by her work;(g) the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment; and(h) the Applicant’s condition is one that reduces tolerance for work, rather than a condition that is caused by work. …132. As should be clear from my findings above, I do consider that the applicant had specific limited constitutional tolerances for certain kinds of work (which I am satisfied constitutes an ailment) which was prompted into pain symptoms when her work reached a certain intensity. The underlying pathology never changed but the work induced the symptoms. The question that arises is whether this constitutes an aggravation of an ailment for the purposes of the Act.… 157. … I find that the Applicant has not suffered a frank injury...158. As noted above, Dr Dale opined that the Applicant’s pain was caused by “her reduced tolerances”. He clarified that in his view, she has reduced tolerances. In Dr Dale’s opinion, he was satisfied that ‘we are dealing with a condition that reduces tolerance for work, rather than a condition that is caused by work”. 159. This condition meets the description of an ailment, although it derives only from the descriptions of the applicant and is not the subject of formal diagnosis ....160. I consider that the Applicant’s pain constitutes an ailment but consistent with my findings at referred to above, that ailment was not contributed to by any, let alone a significant, degree by her employment.161. However, I have found that her ailment was aggravated at times by her employment and, for those periods, she suffered a disease as defined by s 5B(b) of the Act and that disease was, at times, significantly contributed to by her employment.162. Because the Applicant’s employment has not significantly contributed to her constitutional condition and the aggravations have caused no change to her underlying condition, any subsequent aggravations outside of her employment are not compensable.163. … I have found that the underlying condition has not been significantly rendered more susceptible to dehabilitating pain by the Applicant’s employment and hence I do not find that the work-related aggravation has significantly contributed to any permanent incapacity.DECISION164. Accordingly 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.[Citations and references removed.]

Ratio Decidendi

Legal Principle Established

Ms Adams alleges she has a reasonably arguable case which should be allowed to proceed to hearing. She intends to adduce further medical evidence at the hearing which, she asserts, can reasonably be expected to buttress and reinforce her case. This, she asserts, is within the Tribunal’s usual practice and dismissing her application on the present materials would be premature and unjust. Ms Adams presses for Comcare’s application for summary dismissal to be refused.Consideration The discretionary power to dismiss an application under s 101 of the ART Act complements and supports the Tribunal’s procedural powers in Subdivision A, Div. 5, Part 4. These are for the purposes of the Tribunal’s objective in s 9:The Tribunal must pursue the objective of providing an independent mechanism of review that:(a) is fair and just; and(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and(c) is accessible and responsive to the diverse needs of parties to proceedings; and(d) improves the transparency and quality of government decision‑making; and(e) promotes public trust and confidence in the Tribunal. Three important principles must be kept squarely in mind. Firstly, the Tribunal is required to make the correct or preferable decision on the relevant materials placed before it. In so doing, under the interlinked provisions of the ART Act and the SRC Act, it is not strictly bound by any previous determination, factual finding or decision in earlier Tribunal proceedings.[23] Nevertheless, as was said in Quinn v Australian Postal Corporation[24]:It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal. It would be unjust to applicants to have to face a situation where a decision may be made today and relitigated tomorrow on the very same facts. The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination. In compensation cases like the present, the issues of causation and level of incapacity for the period the subject of the earlier decision would thus not be areas contested in a subsequent hearing. [23] Snell, [4].[24] [1992] AATA 668, [32]. Thus, the Tribunal should properly allow re-agitation of matters it has previously decided only where there is a good reason to do so. In the context of the evolving decision-making the scheme of the SRC Act allows, a good reason might arise where new material of probative value has been produced of some relevant change in circumstances which has not previously been considered[25]. [25] Telstra Corporation Limited v Hannaford [2006] FCAFC 87 (Hannaford), per Conti J, [57]. Secondly, exercise of the discretionary power to summarily dismiss an application is essentially preconditioned by satisfaction of one of the elements set out in s 101(1)(a), (b) or (c). The power is not materially different than the power previously conferred under s 42B of the AAT Act, in respect of which it has been accepted the power is one which should be used sparingly and, in respect of the ancillary banning power in s 42B(2), proportionately.[26] [26] Re Filsell and Comcare [2009] AATA 90, [33] cited with approval in Soames v Secretary Department of Social Services [2014] FCA 295, [29], [37]; Oliver, [68].