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…
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- AGLC
- Arrold and Comcare (Compensation) [2024] AATA 1589
- Case
- [2024] AATA 1589
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.