Amanda Dwyer and Comcare - [2013] AATA 564

[2013] AATA 564

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/3533

Re

Amanda Dwyer

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Ms N Bell, Senior Member
Dr W Isles, Member

Date 12 August 2013

Place Sydney
The Tribunal affirms the decision under review.
......[Sgd]..................................................................
Ms N Bell, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – whether applicant suffered aggravation of pre-existing degenerative neck condition – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19
CASES
Tippett v Australian Postal Corporation [1998] FCA 335
SECONDARY MATERIALS
F.M.K. Williams , P.N. Sambrook, 'Neck and back pain and intervertebral disc degeneration: Role of occupational factors', Best Practice & Research Clinical Rheumatology 25 (2011) 69–79

REASONS FOR DECISION
Ms N Bell, Senior Member
Dr W Isles, Member
12 August 2013

Ms Dwyer has worked as a Customer Service Officer for the Child Support Agency since 2006. In April 2007, while sitting at her workstation, she experienced pain in her neck. She notified her employer of the incident but made no claim. She saw her general practitioner, obtained some mechanical massage and took over the counter pain medications and fortnightly massage therapy for the next three months. Over the following four years she had occasional flare ups of pain and her neck never “felt right”. She had massage therapy monthly and took non-prescription medications.
In July 2011, while a passenger in a car, Ms Dwyer’s neck became very painful and “locked up” without any apparent incident or cause. After some investigations and treatment, she claimed compensation.
There is no dispute that Ms Dwyer has underlying degenerative cervical spondylosis which had, before April 2007, been asymptomatic. The only radiological investigations, undertaken in 2011, confirm this. Ms Dwyer contends that her employment has aggravated or accelerated her condition. Comcare contends that her symptoms arise from the natural progression of her degenerative cervical spondylosis.
The issue for us to consider is whether Ms Dwyer’s employment has aggravated or accelerated her underlying degenerative cervical spondylosis.
DID MS DWYER’S EMPLOYMENT AGGRAVATE OR ACCELERATE HER UNDERLYING DEGENERATIVE CERVICAL SPONDYLOSIS?
Ms Dwyer told the Tribunal that she first experienced pain in her neck when she was sitting at her desk typing. After her initial treatment with massage, Panadol and Nurofen she did not consult doctors further and continued with monthly massage, feeling that her neck was a “bit tight”. Following an assessment of her workstation she was given a document tray at work which she said helped her.
In July 2011 after she experienced severe and apparently spontaneous neck pain as a passenger in a car, Ms Dwyer went to a chiropractor for treatment which she ceased by the end of the year on the advice of her general practitioner. She took seven days off work. On her return she still had some pain but felt much better. Since the July 2011 incident Ms Dwyer has taken Panadol or Panadol Osteo every day and said she takes Nurofen for three days at a time when she is…

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 Amanda Dwyer and Comcare

Details

AGLC: Amanda Dwyer and Comcare [2013] AATA 564
Case: [2013] AATA 564
Decision Date

CaseChat Overview and Summary

Amanda Dwyer filed an appeal against a decision by Comcare, the Commonwealth's workplace health and safety regulator, which was concerned with her claim for compensation for a work-related injury. The matter was heard and determined by the Administrative Appeals Tribunal, the tribunal in question being the Social Security and Child Support Division. The primary issue for the tribunal to decide was whether Ms Dwyer's degenerative condition had been aggravated by her employment activities, thereby entitling her to compensation. A secondary issue was whether the tribunal was correct in its application of the relevant legal principles in reaching its decision.

The tribunal found that Ms Dwyer's degenerative condition did not constitute an aggravation of her pre-existing condition due to her employment activities. The tribunal's reasoning hinged on the distinction drawn in the case of Tippett v Australian Postal Corporation, where Finkelstein J held that a distinction should be made between an employee who suffers from a pre-existing condition that causes pain regardless of whether they are at work, and an employee whose pre-existing condition is exacerbated by their work activities. The tribunal concluded that Ms Dwyer fell into the first category, and thus was not entitled to compensation for an aggravation of her condition. The tribunal also found that it had correctly applied the relevant legal principles in reaching its decision.

The tribunal affirmed the decision under review, dismissing Ms Dwyer's appeal. The tribunal found that Comcare's decision was legally sound and based on the correct application of the relevant legal principles. The tribunal's decision was final and binding, and no further appeal lay to the Full Court of the Federal Court or any other court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We were referred to the judgment of the Federal Court in Tippett v Australian Postal Corporation [1998] FCA 335 in which Finkelstein J drew a distinction between the case of a person who has a pre-existing injury that causes the person to suffer pain whether or not the person is at work and the case of a person who has a pre-existing injury and it is the activities of work that cause the person to suffer pain or to suffer it more intensely. We consider that Ms Dwyer falls into the first category. In accordance with the judgment in Tippett, it could not be said that Ms Dwyer suffered an aggravation of her pre-existing degenerative condition.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3533
Re	Amanda Dwyer
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Ms N Bell, Senior Member Dr W Isles, Member
Date	12 August 2013
Place	Sydney