Ajmal and Comcare (Compensation) - [2022] AATA 3978

Ajmal and Comcare (Compensation) [2022] AATA 3978 (24 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/4286
Re:Muhammad Ajmal
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Member W Frost
Date:24 November 2022
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
......................[SGD]......................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – denial of liability for an aggravation of lateral epicondylitis (right) – ‘tennis elbow’ -- where Applicant worked as auditor – keyboard and mouse usage – where symptoms aggravated by employment and outside daily living activities – underlying degenerative condition – employment contribution not established to a significant degree – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43(1)
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14
Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Comcare v Power [2015] FCA 1502
REASONS FOR DECISION
Member W Frost
24 November 2022
INTRODUCTION

The Applicant, Mr Muhammad Ajmal, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, affirming its determination denying liability to pay him compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for ‘right lateral elbow tendinopathy’ (referred to as LET and commonly known as ‘tennis elbow’).
Mr Ajmal claimed to have begun experiencing pain while undertaking audit work in his employment with the Australian National Audit Office (ANAO). Comcare declined liability under the SRC Act because it found that Mr Ajmal did not suffer an ‘injury’ for the purposes of the SRC Act; it was not satisfied that the LET was contributed to, to a significant degree, by his employment.
The Tribunal has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the parties’ ‘Hearing Book’ bundle of documents, together with their submissions at the hearing.[1] For the following reasons, the Tribunal affirms Comcare’s decision because Mr Ajmal’s application fails to meet the requirements of the SRC Act and Comcare is therefore not liable to pay him compensation.
[1] Exhibits 1, 2 and 3.
ISSUE
The issue for the Tribunal to decide in this proceeding is whether Mr Ajmal suffered an ‘injury’ under the SRC Act.
BACKGROUND
Mr Ajmal is 46 years old.[2]
[2] Exhibit 1, page 28.
In 2011, Mr Ajmal commenced employment with the ANAO.[3] He is employed as a Team Member of the Assurance Audit Services Group at the Australian Public Service Level 5.[4]
[3] Ibid., page 34.
[4] Ibid., pages 75-76.
On 20 August 2020, Mr Ajmal completed an ANAO ‘Accident/Incident Report’ and relevantly stated that he ‘started experiencing pain in forearm and elbow region during the DFAT and DVA audit final field work’, ‘kept working’ and considered the pain to be ‘muscular and due to fast paced audit work environment and extra work’.[5] Mr Ajmal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ajmal and Comcare (Compensation)

Details

AGLC: Ajmal and Comcare (Compensation) [2022] AATA 3978
Case: [2022] AATA 3978
Decision Date: 24 November 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Ajmal against a decision by Comcare to deny liability for an aggravation of lateral epicondylitis, commonly known as "tennis elbow," in his right arm. Mr. Ajmal, employed as an auditor, claimed his condition was aggravated by his work involving extensive keyboard and mouse usage. Comcare contended that while Mr. Ajmal suffered from an ailment, it was a degenerative condition not contributed to by his employment to a significant degree, and therefore sought affirmation of its decision to deny compensation.

The legal issue before the Tribunal was whether Mr. Ajmal had suffered an "injury" as defined by the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Specifically, the Tribunal was required to determine if Mr. Ajmal's lateral epicondylitis constituted a "disease" under the Act, which necessitates a finding that his employment contributed to the condition to a significant degree. The Tribunal also considered the evidentiary standard required to satisfy the statutory requirements for compensation.

The Tribunal reasoned that while Mr. Ajmal experienced pain symptoms during his work, this alone was insufficient to establish that his ailment was significantly contributed to by his employment. The weight of the expert medical evidence did not support a significant contribution from his employment with the ANAO. Instead, the Tribunal found that Mr. Ajmal's condition was primarily the result of an underlying constitutional and age-related process, not caused by his work. Consequently, the Tribunal was not satisfied that his employment contributed to his ailment to a significant degree, meaning he had not suffered a "disease" or "injury" under the SRC Act.

Accordingly, the Tribunal affirmed Comcare's decision, finding that Comcare was not liable to pay compensation to Mr. Ajmal pursuant to section 14 of the SRC Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue for the Tribunal to decide in this proceeding is whether Mr Ajmal suffered an ‘injury’ under the SRC Act. BACKGROUND Mr Ajmal is 46 years old.[2] [2] Exhibit 1, page 28. In 2011, Mr Ajmal commenced employment with the ANAO.[3] He is employed as a Team Member of the Assurance Audit Services Group at the Australian Public Service Level 5.[4] [3] Ibid., page 34.[4] Ibid., pages 75-76. On 20 August 2020, Mr Ajmal completed an ANAO ‘Accident/Incident Report’ and relevantly stated that he ‘started experiencing pain in forearm and elbow region during the DFAT and DVA audit final field work’, ‘kept working’ and considered the pain to be ‘muscular and due to fast paced audit work environment and extra work’.[5] Mr Ajmal further stated that the ‘pain kept going for few days and started making me more uncomfortable during work with computer usage, writing and movements’.[6] Mr Ajmal noted that this issue was first reported on 4 August 2020.[7][5] Ibid., pages 11-15. [6] Ibid., page 11. [7] Ibid., page 12. On 31 August 2020, Mr Ajmal was referred by the ANAO for a workstation ergonomic assessment and this was undertaken in September 2020.[8][8] Ibid., pages 16-22. On 22 September 2020, Mr Ajmal participated in an early intervention return to work assessment with an exercise physiologist.[9] Mr Ajmal’s symptoms were recorded as including a ‘burning feeling in his elbow’; ‘sharp pain’ when gripping an object to pick up; ‘pain’ when lifting a cup of tea to his mouth; ‘pain at night’; not being able to ‘lift unilaterally with his right arm or bilaterally without experiencing pain in his elbow’; and ‘pain when pushing/pulling items such as a heavy door’.[10] Mr Ajmal also reported that he ‘currently has to start his car with his left hand before he gets in as he experiences pain when twisting the key with his right hand’ and ‘experiences pain’ when ‘twisting to place his right arm in his shirt’.[11] [9] Ibid., pages 23-27. [10] Ibid., page 24. [11] Ibid., page 25. On 15 October 2020, Mr Ajmal submitted a Workers’ Compensation Claim to Comcare.[12] In that claim form, Mr Ajmal stated that the condition for which he was seeking compensation was:[13]Experiencing executing pain in the wright arm elbow due to computer key board and mouse’s usage and audit work on the workstation. [errors in original][12] Ibid., pages 28-35. [13] Ibid., page 29. Mr Ajmal further stated in his claim that he was doing auditing work ‘as prescribed as a APS 5’ when he was injured.[14] In response to the question in the claim form as to what happened and how Mr Ajmal was injured, he stated that:[15]I started experiencing pain initially on 8 July onwards when I was working on DFAT and DVA final audit phase. Initially I thought it to be muscular pain due to extra effort (using ANAO computer, key board and mouse) to complete the assigned work and help the audit team to achieve the target. I took pain killer/applied ointment. The pain did not settle, and after few days I saw the doctor on 11 July 2020 and on the recommendation got ultrasound 21 July 2020 diagnosing tennis elbow problem there after on 3rd august recommended cortisone injection still then I have been undertaking medical treatment as per doctor advice including medication and physiotherapy. Incident report also was filled and provided to ANAO. More detail can be provided as required. [errors in original] [14] Ibid. [15] Ibid., pages 29-30.

Evidence

Evidence Before The Court

Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’. EVIDENCEMr Ajmal The Tribunal has considered in its decision the witness statement filed by Mr Ajmal in this proceeding on 28 September 2022, together with his Statement of Facts, Issues and Contentions dated 12 May 2022.[23] Mr Ajmal gave evidence in-person at the hearing of the proceeding and confirmed adherence to his witness statement. Mr Ajmal confirmed his employment as an auditor with the ANAO commenced in 2011 and comprised the responsibilities set out in the position description for his role.[24] Mr Ajmal told the Tribunal that his work hours did not increase in the time from March 2020 until the time of the claimed injury and he was using a computer, keyboard and mouse for his work. [23] Exhibit 3, pages 251-252 and 261-269. [24] Exhibit 1, pages 75-76. Mr Ajmal told the Tribunal he experienced symptoms on or around 7 or 8 July 2020. His work duties had not changed around this time. Mr Ajmal considered the pain would resolve within a matter of days and he used pain medication. However, the pain became worse and he attended his general practitioner who diagnosed ‘tennis elbow’. In August 2020, Mr Ajmal continued work while in pain, but when he felt swelling in his hand he reported it to his manager at the ANAO through the incident report from 20 August 2020.[25] He agreed that his symptoms came on progressively. After his incident report, Mr Ajmal underwent an ergonomic assessment. [25] Ibid., pages 11-15. Mr Ajmal told the Tribunal that he first saw his general practitioner, Dr Goel, on 11 July 2020 in relation to his right elbow. Mr Ajmal said Dr Goel was unsure of the diagnosis and had queried whether it was ‘tennis elbow’. Mr Ajmal agreed that the clinical notes from this consultation contained neither reference to his work duties nor his employment in relation to his right elbow condition. Mr Ajmal told the Tribunal that on the day he was unsure of the reason for his symptoms, but the ‘office’ always encouraged people to have breaks from keyboarding. He could not recall what he told the doctor at this consultation, but Mr Ajmal’s understanding was that his symptoms were because of keyboarding and he had given an account of his daily activities. Mr Ajmal again saw Dr Goel on 3 August 2020 and told him that he considered his condition was work related because he uses the keyboard all the time. Mr Ajmal said that he told Dr Goel he was worse at work, but fine while at rest, although he also agreed that he had pain during the night and after five or 10 minutes while using the computer. After this, he used ‘Dragon’ voice to text software to avoid keyboarding. Mr Ajmal agreed that the pain in the middle of the night was ‘very, very worse’ at this time and that he also experienced pain when gripping, twisting, pushing and lifting objects using his right arm while not at work and during ‘normal life activities’, set out in the exercise physiologist’s report of 22 September 2020.[26] In this regard, he recalled experiencing pain ‘all the time’. [26] Ibid., pages 24-25. See also Exhibit 3, page 134 and 140.

Decision

Reasons for decision

While Mr Ajmal experienced pain symptoms at work, this is not sufficient in itself to establish that his ailment was contributed to, to a significant degree, by his employment. The weight of expert medical evidence does not establish that Mr Ajmal’s ailment was contributed to, to a significant degree, by his employment with the ANAO. Based on that medical evidence, the Tribunal finds that Mr Ajmal’s condition was the result of an underlying constitutional and age-related process, which was not caused by his employment. Therefore, the Tribunal is not satisfied that Mr Ajmal’s ailment was contributed to, to a significant degree, by his employment with the ANAO. As a result, Mr Ajmal has not suffered a ‘disease’ under section 5B of the SRC Act and therefore has not suffered an ‘injury’ pursuant to section 5A of the SRC Act. For these reasons, Mr Ajmal’s claim for compensation under the SRC Act is unsuccessful. Accordingly, Comcare is not liable to pay compensation to Mr Ajmal pursuant to section 14 of the SRC Act. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

Ratio Decidendi

Legal Principle Established

Comcare contended that the medical evidence does not establish that Mr Ajmal’s condition met the requirements of a ‘disease’ under the SRC Act. While Comcare accepted that Mr Ajmal suffered from an ‘ailment’, being his LET or right-sided ‘tennis elbow’, it submitted that this was a degenerative condition and was not contributed to, to a significant degree, by Mr Ajmal’s employment with the ANAO. Therefore, Comcare sought an affirmation of its reviewable decision that it is not liable to pay compensation to Mr Ajmal under the SRC Act. CONSIDERATIONThe Tribunal’s task The issue before the Tribunal is whether Mr Ajmal suffered an ‘injury’, as defined by the SRC Act, in order to be paid compensation by Comcare. While it is well established that there is no onus of proof in the Tribunal’s jurisdiction, the Tribunal must be satisfied, based on relevant and probative material, that the requirements of the relevant legislation are met for a particular statutory power to be exercised in favour of an applicant. The Federal Court of Australia in Beezley v Repatriation Commission (2015) 150 ALD 11 at [68] held that:If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest. Additionally, Justice Kiefel (as her Honour then was) said in Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [25] that, although the Tribunal is not bound by the rules of evidence, this ‘does not justify decisions made without a basis in evidence having probative force’.[48] In this regard, it was held at [26] that:[49]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.[48] 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. [49] These paragraphs were referred to in Comcare v Wuth [2018] FCAFC 13 at [98].