Arrold and Comcare (Compensation) - [2024] AATA 1589

Arrold and Comcare (Compensation) [2024] AATA 1589 (13 June 2024)
Division:GENERAL DIVISION
File Numbers:2022/5509
Re:Harvey Jay Arrold
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:13 June 2024
Place:Brisbane

The Tribunal affirms the decisions under review.
.................................[SGD]....................................
Member D Mitchell
Catchwords
COMPENSATION – claim for compensation – Applicant suffered from a shoulder condition – whether the Applicant’s ailment or aggravation of the ailment, was contributed to, to a significant degree, by his employment – where Respondent determined no liability for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Reardon (2016) FCA 1116
Odgen Industries Pty Ltd v Lucas [1967] HCA 30; 116 CLR 537
REASONS FOR DECISION
Member D Mitchell
13 June 2024
INTRODUCTION

Mr Harvey Jay Arrold (the Applicant) is employed by the Department of Home Affairs.[1]
[1] Exhibit 1, T Document, T7, page 47, Workers’ Compensation Claim Form.
On 25 August 2020, the Applicant made a claim for compensation in relation to a left shoulder injury.[2]
[2] Exhibit 1, T Documents, T7. pages 42-49, Workers’ Compensation Claim Form.
On 4 November 2020, the Respondent determined that it was not liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).[3]
[3] Exhibit 1, T Documents, T17, pages 258-262, Determination declining claim for labral injury (tear) – left shoulder.
The Applicant sought internal review of that decision. On 13 May 2022, the Respondent affirmed its determination made on 4 November 2020.[4]
[4] Exhibit 1, T Documents, T23, pages 295-300, Reviewable Decision.
BACKGROUND
The Applicant commenced employment with the Department of Home Affairs[5] (the Department) in 2006 and has worked predominantly in desk-based employment, in an office and at various detention centres and other locations whilst on deployment.[6]
[5] The Tribunal notes that during the Applicant’s employment the Department has had a number of different names as a result of machinery of government.
[6] Exhibit 1, T Documents, T9(a), pages 53-54, Statement of the Applicant and T10(a), pages 58-60, Response from Applicant’s manager.
On 28 January 2009, the Applicant reported to the Department that he had been experiencing discomfort/tension in his lower back and/or shoulders. It was suggested that the issue may have stemmed from an incorrectly configured workstation or lack of support from his current chair and a request was made for a workstation ergonomic assessment to be undertaken.[7]
[7] Exhibit 1, T Documents, T3, pages 22-25, Department of Immigration and Border Protection (DIBP) Incident Report.
In a statement dated 10 September 2020, the Applicant outlined that in the previous 10 years he had worked in various high profile, politically sensitive and often demanding operational roles, undertaking immigration enforcement duties. He stated that it was not uncommon, to have been regularly required to work more than a standard day. The Applicant said that he worked 10-12 hour days up to 6…

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 Arrold and Comcare (Compensation)

Details

AGLC: Arrold and Comcare (Compensation) [2024] AATA 1589
Case: [2024] AATA 1589
Decision Date: 13 June 2024

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by Comcare (the Respondent) to deny liability for compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Applicant claimed compensation for a shoulder condition, specifically a labral tear, which he asserted was a repetitive strain injury that had developed over many years of employment. The Respondent had determined that the Applicant's employment had not contributed to his ailment or an aggravation of an ailment to a significant degree.

The primary legal issue before the Tribunal was whether the Applicant's shoulder condition, or an aggravation of that condition, was contributed to, to a significant degree, by his employment. This required the Tribunal to consider the definition of "significant degree" as meaning substantially more than material, and to assess the medical evidence in light of the factors outlined in section 5B(2) of the *SRC Act*. The Applicant contended that his employment, characterised by long hours, demanding operational roles, and poor ergonomic environments, had caused or aggravated his shoulder condition over time, rather than a specific traumatic event.

The Tribunal found the Applicant to be a credible witness and acknowledged that his shoulder pain had been experienced throughout his employment, with various reports made to his employer regarding workstation ergonomics and seeking treatment. However, the Tribunal noted that the medical evidence, including that from treating doctors and independent examiners, was consistent in its inability to pinpoint when the shoulder condition occurred or whether it had been the cause of pain since 2009. While the Tribunal accepted that the Applicant's shoulder condition might be impacted by his employment, it concluded that the medical evidence did not satisfy the threshold of proving contribution to a "significant degree" as required by the *SRC Act*.

Consequently, the Tribunal affirmed the Respondent's decision, finding that the Applicant had not established an injury for the purposes of section 5A of the *SRC Act*. Therefore, compensation was not payable in relation to the claimed shoulder injury.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant sought internal review of that decision. On 13 May 2022, the Respondent affirmed its determination made on 4 November 2020.[4][4] Exhibit 1, T Documents, T23, pages 295-300, Reviewable Decision.BACKGROUND The Applicant commenced employment with the Department of Home Affairs[5] (the Department) in 2006 and has worked predominantly in desk-based employment, in an office and at various detention centres and other locations whilst on deployment.[6][5] The Tribunal notes that during the Applicant’s employment the Department has had a number of different names as a result of machinery of government.[6] Exhibit 1, T Documents, T9(a), pages 53-54, Statement of the Applicant and T10(a), pages 58-60, Response from Applicant’s manager. On 28 January 2009, the Applicant reported to the Department that he had been experiencing discomfort/tension in his lower back and/or shoulders. It was suggested that the issue may have stemmed from an incorrectly configured workstation or lack of support from his current chair and a request was made for a workstation ergonomic assessment to be undertaken.[7][7] Exhibit 1, T Documents, T3, pages 22-25, Department of Immigration and Border Protection (DIBP) Incident Report. In a statement dated 10 September 2020, the Applicant outlined that in the previous 10 years he had worked in various high profile, politically sensitive and often demanding operational roles, undertaking immigration enforcement duties. He stated that it was not uncommon, to have been regularly required to work more than a standard day. The Applicant said that he worked 10-12 hour days up to 6 days per week during periods of high and sustained operational tempo, such as in the peak of Irregular Maritime Arrivals which saw immigration detention centres being stood up in various remote locations across the country. The Applicant described having undertaken a number of deployments to remote area detention centres and that many of the work sites were “hodgepodge, demountable-type offices or dilapidated building with makeshift work stations and unsupportive office furniture.”[8] [8] Exhibit 1, T Documents, T9(a), pages 53-54, Statement of the Applicant. On 3 September 2014, the Applicant reported to the Department that he had been experiencing a niggling pain/injury in his left shoulder which was referring down his upper left arm. He advised that he believed the injury was a result of poor posture and/or incorrect workstation configuration. The Applicant reported that he had been referred for an x-ray, had had a workstation assessment completed on 1 September 2014 and was undertaking regular massage.[9][9] Exhibit 1, T Documents, T4, pages 26-29, DIBP Incident Report. On 23 July 2015, the Applicant reported to the Department that he was experiencing shoulder pain/discomfort stemming from what he felt was an unsupportive or incorrectly configured workstation. He stated that the discomfort appeared to relate to an intermittent issue which was first identified in 2009.[10][10] Exhibit 1, T Documents, T6, pages 38-41, DIBP Incident Report.

Evidence

Evidence Before The Court

The Applicant told the Tribunal that:[30][30] Transcript, pages 8-35 and 68-69.·He agrees with the diagnosis of his shoulder condition being a labral tear.·He suggests that his shoulder condition is a repetitive strain injury that has gotten worse over the years and then eventuated into a labral tear.·He maintained that the nexus with significant contribution exists.·There was no significant trauma to his left shoulder but rather his shoulder condition had occurred as “a very slow burn” which was well documented with his employer over a period of years. ·It took a long time to diagnose his shoulder condition and he understands that one of the doctors in their report provided that the research is not strong in relation to repetitive strain injuries giving rise to injuries of this kind.·It is his personal opinion the repetitive strain, exceptional work hours and exceptional work environments that he was employed under between 2009 up to 2014 (being the irregular maritime arrival peak) and beyond that led to his shoulder condition.·During that period the government was under severe pressure to stand up immigration detention centres all around the country and he was deployed to those detention centres. The working environments at the detention centres were rudimental and were hastily put together.·The nature of his shoulder condition is permanent, ongoing and episodical.·There is a clear synergy to periods of sustained administrative work where he would get a flare-up.·His condition will get worse as he ages particularly without surgery.·He wants the link between his work and his shoulder condition looked at from both a cause and aggravation point.·He worked 10 or 12 hour days for long periods of time in a high operational tempo with poor ergonomics.·It is difficult to remember back to 2009 however that is when he thinks signs of his shoulder condition began. He had started his employment with the Department in 2006.·His shoulder condition symptoms have never resolved they have improved at times. He did what he had to do to get the work done and pushed through any physical pain he was experiencing. Being deployed to remote areas made getting treatment difficult.·In 2014 after many years of deployment he returned home and went back to an office environment. Once he had decompressed and the adrenaline of the work had subsided, he was able to stop and breathe and think about what he needed to do to look after himself.·His shoulder condition is episodical so some periods it is better than others.·From 2015 he would get irritated or sick of living with the condition, or the pain or discomfort and he would engage in remedial massage, dry needling and get some relief. His shoulder condition would improve then he would cruise along until another flare up and it got to the point where physiotherapy, dry needling, massage and Cortisone assisted to lesser extents.·He does not know at what point of time in his life that the labral tear occurred and that is why he maintains that it was a slow build-up, a slow burn, a repetitive strain, very poor ergonomic environments and very high tempo work for sustained periods of time that contributed to it, it is not a traumatic event that occurred at a point in time.·It was fair to say that since 2006 most of his employment roles with the Department have been desk-based or administrative in nature.·He agreed that in terms of his work being administrate work, most of the work he was doing was sitting down or standing up.·He agreed that he did not have to do any heavy lifting in the course of his employment.EXPERT EVIDENCEDr Sumant Kevat

Decision

Reasons for decision

The Tribunal notes that while it may be said that the Applicant’s shoulder condition is impacted upon by his employment, that is not the test it has to apply. The test requires a finding that the Applicant’s shoulder condition or aggravation thereof, was contributed to, to a significant degree by his employment. On the basis that significant degree means a degree that is substantially more than material, the Tribunal cannot on the medical evidence before it be satisfied the Applicant’s shoulder condition or any aggravation thereof was contributed to, to a significant degree by his employment.CONCLUSION Based on the evidence and for the reasons set out above, the decision under review which denied liability under section 14 of the SRC Act in respect of the Applicant’s claimed shoulder condition is affirmed. Accordingly, the Tribunal finds that the Applicant does not have an injury for the purposes of section 5A of the SRC Act. Therefore, compensation is not payable, pursuant to section 14 of the SRC Act in relation to the Applicant’s claimed shoulder injury.

Ratio Decidendi

Legal Principle Established

The Respondent contended that overall the medical evidence does not leave open any room for a finding of a significant contribution by the Applicant’s employment to the cause or contribution to an aggravation.[68] [68] Transcript, page 68.CONSIDERATION Firstly, the Tribunal notes that the Applicant expressed dissatisfaction in relation to the record keeping of the Department and other procedural matters. The Tribunal in no ways trivialises those concerns, however it has no jurisdiction to deal with them. The Tribunal notes it found the Applicant to be creditable witness. The Applicant’s position in relation to his shoulder condition is not a position without logic, he has experienced shoulder pain throughout his employment. At various times between 2009 and the date of his claim, the Applicant reported his pain to his employer and sought assistance with his workstation ergonomics, he worked long hours in challenging environments and he sought treatment when he was able. The Applicant reports his shoulder pain fluctuating and being episodical. The Applicant contended that his employment contributed to a significant degree to his shoulder injury or alternatively if that was not the case had contributed to a significant degree to an aggravation of his shoulder condition. The Applicant contended that his shoulder condition had occurred over time and that repetitive strain, very poor ergonomic environments and high tempo work for sustained periods contributed to the eventual labral tear. The Applicant acknowledged, the question before the Tribunal is inherently a medical question of which he said he deferred to the medical experts and sought that the Tribunal review all the evidence before it in considering whether his claim should be successful. Having had the benefit of hearing evidence from the Applicant, Dr Kevat and Dr O’Neill at the Hearing and having reviewed the totality of the evidence before it, as set out above, the Tribunal finds that:(a)the correct diagnosis of the Applicant’s shoulder condition is ‘left shoulder posterior/posteroinferior labral tear’; and(b)the Applicant’s shoulder condition did not result from any specific injury or incident and as such is for the purposes of the SRC Act a disease, being an ailment or aggravation of an ailment. In considering whether the Applicant’s shoulder condition or an aggravation of that condition was contributed to, to a significant degree, by the Applicant’s employment the Tribunal notes that significant degree means a degree that is substantially more than material. Relevant matters that may be taken into account are set out in section 5B(2) of the SRC Act. The medical evidence before the Tribunal is overall consistent in relation to the diagnosis of the Applicant’s shoulder condition and the fact that it was not possible to diagnose the condition without an MRI scan. Both the Applicant’s treating doctors and the independent medical examiners stated that it is not possible to pinpoint when his shoulder condition actually occurred or whether it has been the cause of his shoulder pain since 2009.