Anna Maria Garcia and Comcare

Case [2014] AATA 320

[2014] AATA 320

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/3185

Re

Anna Maria Garcia

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 23 May 2014
Place Brisbane

The Tribunal affirms the decision under review.

........................Sgd.............................................

Mr R G Kenny, Senior Member

CATCHWORDS

WORKERS' COMPENSATION – Comcare and Department of Veterans’ Affairs employee – Reviewable decision that liability denied under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for “thoracic sprain” – Applicant suffers from mechanical thoracic back pain – Whether pre-existing injury aggravated by employment – Decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14

CASES

Coles v Australian Postal Corporation [2011] AATA 62

Comcare and Sahu-Khan (2007) 156 FCR 536

Comcare v Canute (2005) 148 FCR 232

Commonwealth v Beattie (1981) 35 ALR 369

Mellor v Australian Postal Corporation (2009) 108 ALD 159

Ogden Industries Pty Ltd v Lucas (1967) 118 CLR 537

Re Smith and Comcare (1995) 39 ALD 715

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

Mr R G Kenny, Senior Member

23 May 2014

BACKGROUND

  1. Anna Maria Garcia (“the applicant”) was employed by the Australian Public Service from 25 October 2004 with Comcare and then, from 2 May 2005, with the Department of Veterans’ Affairs (“DVA”) until she ceased work on 11 December 2011 on incapacity grounds. She was based in Canberra until she moved to Brisbane in October 2011.  


    On 20 January 2012, she completed a claim, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “[s]pinal scoliosis and significant osteopaenia that has caused back pain which has been aggravated by prolonged sitting and leaning towards computer”. In her claim form, she alleged that this occurred on the afternoon of 11 August 2005 while she was sitting and typing on her computer using her mouse and involved a “dibilitating [sic] electric shock” through her spine. On 19 April 2012, Comcare (“the respondent”) rejected her claim. That determination was affirmed in a reviewable decision on 5 July 2012. The applicant seeks review of that determination.

    EVIDENCE

    Documentary material

    Medical treatment

  2. The applicant commenced working with the Australian Public Service in October 2004 when she was employed by Comcare. There, her duties involved data entry which required her to sit at a desk using a computer. After a few months with Comcare, she had some back pain and sought relief by using a cushion in her chair. This was noted by her supervisor who arranged a replacement prototype chair of unusual design. This provided her with immediate relief from pain. She transferred to DVA in May 2005 and remained in its employ until she ceased work on 11 December 2011. Her duties with DVA again involved computer work and sitting at a desk for long periods as well as lifting heavy files. Her back pain recommenced gradually at…

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AGLC
Anna Maria Garcia and Comcare [2014] AATA 320
Case
[2014] AATA 320
Decision Date

CaseChat Overview and Summary

The case involves Anna Maria Garcia, a former employee of Comcare and the Department of Veterans’ Affairs, who sought compensation for a thoracic sprain she claimed was aggravated by her employment. Comcare denied her claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988, a decision that was subsequently affirmed in a reviewable determination. Garcia sought a review of this decision, arguing that her employment exacerbated her pre-existing condition. The court was tasked with determining whether the aggravation of Garcia's condition was due to her employment or other factors, and whether Comcare's denial of her claim was justified.

The primary legal issue the court had to decide was whether the aggravation of Garcia's thoracic pain was a result of her employment or other non-work-related factors. The evidence presented included detailed medical records and workplace assessments, which indicated that Garcia's pain could be linked to both her employment and personal circumstances. The court also needed to consider the extent to which psychosocial factors, such as relationship problems and depression, contributed to her condition. The court had to weigh the evidence and determine whether Comcare's denial of liability was reasonable.

In affirming the decision under review, the court concluded that while Garcia's employment may have contributed to her pain, the primary factors leading to her condition were non-work-related. The evidence showed that psychosocial influences, such as relationship problems and depression, played a significant role in her episodes of pain. The court found that these factors had no direct connection to her employment with the Commonwealth. Consequently, the decision to deny liability was upheld, as the aggravation of Garcia's condition was not primarily due to her employment.

The court's decision was that the reviewable determination denying Garcia's claim for compensation was affirmed. The court found that the evidence did not sufficiently establish that her employment was the primary cause of the aggravation of her thoracic pain. Instead, the court recognised that personal and psychosocial factors contributed significantly to her condition. Therefore, the court upheld Comcare's decision, and Garcia's claim for compensation was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Anna Maria Garcia (“the applicant”) was employed by the Australian Public Service from 25 October 2004 with Comcare and then, from 2 May 2005, with the Department of Veterans’ Affairs (“DVA”) until she ceased work on 11 December 2011 on incapacity grounds. She was based in Canberra until she moved to Brisbane in October 2011. On 20 January 2012, she completed a claim, under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “[s]pinal scoliosis and significant osteopaenia that has caused back pain which has been aggravated by prolonged sitting and leaning towards computer”. In her claim form, she alleged that this occurred on the afternoon of 11 August 2005 while she was sitting and typing on her computer using her mouse and involved a “dibilitating [sic] electric shock” through her spine. On 19 April 2012, Comcare (“the respondent”) rejected her claim. That determination was affirmed in a reviewable decision on 5 July 2012. The applicant seeks review of that determination.EVIDENCEDocumentary materialMedical treatment The applicant commenced working with the Australian Public Service in October 2004 when she was employed by Comcare. There, her duties involved data entry which required her to sit at a desk using a computer. After a few months with Comcare, she had some back pain and sought relief by using a cushion in her chair. This was noted by her supervisor who arranged a replacement prototype chair of unusual design. This provided her with immediate relief from pain. She transferred to DVA in May 2005 and remained in its employ until she ceased work on 11 December 2011. Her duties with DVA again involved computer work and sitting at a desk for long periods as well as lifting heavy files. Her back pain recommenced gradually at DVA despite several workplace assessments conducted by Occupational Health and Safety Officers. These were conducted in September 2005, February 2006, September 2006, October 2008 and October 2011. On each occasion, adjustments were made to the applicant’s desk and/or chair including the provision of a sit/stand workstation which helped her manage her back symptoms at work from 2008. After her transfer to Brisbane, some six weeks passed before her Canberra work station arrived for her. In that time, she used a temporary chair which she found unsuitable. The applicant identified her general practitioners (“GPs”) as Dr Sonia Res from 2002 until May 2008, Dr Siew Lo until she moved to Brisbane and then Dr Ross Taylor. She consulted them on many occasions for her thoracic pain and other matters. She saw Dr Res on seven occasions from June 2004 until July 2005 but not for back pain. In June 2004, Dr Res’ clinical notes record the applicant with a history of hospitalisation for depression in 2002 in the context of marriage breakdown and domestic violence. In June, July and October 2004, Dr Res recorded further episodes of serious relationship problems as well as general health issues. In June 2005, Dr Res noted that the applicant was still feeling depressed. On 11 July 2005, the applicant told Dr Res that she was moving into a new house that week. She did this on 13 July 2005.

Decision

Reasons for decision

Dr Speldewinde, Dr Burke and Dr Taylor confirmed in their evidence that psychosocial factors are capable of triggering exacerbations of the kind of pain from which the applicant complained. There is evidence of such matters impacting on the applicant from 2002 through to 2011. Dr Res recorded experiences of abuse and violence in the applicant’s first and second marriages; she also noted that the applicant was burdened by the care needs arising from the severe health problems of her second husband; and there are many references in her treating doctor’s records of anxiety, depression and financial pressures impacting on her. The clinical notes from Dr S Lo’s practice, spanning from 2009 to 2011, refer to a house break-in, a horrible relationship, “stress” from a “problem with hubby’s family”, the applicant being upset about hospital treatment of her husband and “depression on/off husband in intensive care”. It may well be the case that these psychosocial influences played their part in the episodes of pain experienced by the applicant. Even if they did, they have no relationship to her employment with the Commonwealth. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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