Bayley and Comcare (Compensation) - [2016] AATA 39

Bayley and Comcare (Compensation) [2016] AATA 39 (29 January 2016)

Division

GENERAL DIVISION

File Number(s)

2015/1310

Re

Anastasia Bayley

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President Gary Humphries

Date 29 January 2016

Place Canberra
The decision under review is affirmed.
..........................[sgd]..............................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employees – claim for trigger thumb – whether injury or disease – Applicant had accepted carpal tunnel syndrome – whether contributed to, to a significant degree, by employment – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 5A and 5B
Cases
Beezley v Repatriation Commission [2015] FCAFC at [68]
Cichello and Comcare [2010] AATA 509
Kennedy Cleaning Services Pty Ltd v Petkoska(2000) 200 CLR 286
Winsall and Comcare [2003] AATA 51
Zdziarski and Telstra Corporation Ltd [2014] AATA 108
REASONS FOR DECISION
Deputy President Gary Humphries
29 January 2016

Mrs Anastasia Bayley, the applicant in this proceeding, has been a customer service officer within Centrelink and its predecessors for 24 years. In 2014, however, she began to experience pain in her hands, which she attributed to the increasing incidence of computer-based data entry as paper-based claims applications were gradually superseded by paperless online applications. She estimated that probably 80 percent of a regular day is keyboard/mouse based.
She is 55 years old.
Mrs Bayley was diagnosed with carpal tunnel syndrome, and she submitted a workers compensation claim for this condition on 24 April 2014, a claim subsequently accepted by Comcare. On 20 May 2014, Dr Phillip Frawley performed carpal tunnel decompression surgery on Mrs Bayley’s right-hand. Following the surgery, her hand was immobilised for about two weeks. However, soon after the removal of the bandaging Mrs Bayley noticed discomfort in her right hand. Her right thumb clicked for the first time on her way home from the surgery after having the bandages removed. On 4 July 2014 she consulted her GP, Dr Ranjan Gupta, who recorded pain base of right thumb, which started after surgery. Dr Gupta referred her on 19 September 2014 to Dr James Masson, a hand and wrist surgeon, who gave her right hand an injection. She later required another injection.
On 24 November 2014, Mrs Bayley made a workers compensation claim for trigger thumb. On 6 February 2015, Comcare denied liability for this condition, a position it maintained on 13 March 2015 after Mrs Bayley asked it to reconsider. This is the decision which the Tribunal is now called upon to review.
On 9 April 2015 Comcare ceased to accept liability for Mrs Bayley’s carpal tunnel syndrome condition.
The Legislation
Mrs Bayley’s claim is made under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), which provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. For the purposes of such a claim, it is necessary to determine whether the condition complained of is an

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 Bayley and Comcare (Compensation)

Details

AGLC: Bayley and Comcare (Compensation) [2016] AATA 39
Case: [2016] AATA 39
Decision Date: 29 January 2016

CaseChat Overview and Summary

In the case of Bayley and Comcare (Compensation), the applicant, Mrs. Bayley, sought compensation for a trigger thumb condition in her right hand. The respondent, Comcare, was required to determine whether the condition was an injury or a disease as defined under the relevant legislation and whether it was connected to Mrs. Bayley's employment. The case was heard and decided by the Administrative Appeals Tribunal.

The primary legal issues the Tribunal had to decide were whether Mrs. Bayley’s right trigger thumb constituted an injury or a disease under the applicable statutes, and if so, whether the condition was connected to her employment to a significant degree. The Tribunal also had to consider whether the trigger thumb was a result of the operation on 20 May 2014. The definition of an injury or a disease under the legislation was central to resolving these issues, as well as the necessary nexus between the condition and the applicant’s employment.

The Tribunal found that the medical evidence indicated that Mrs. Bayley had a trigger thumb, a form of tenosynovitis, in her right hand. However, the Tribunal concluded that the condition did not have the requisite connection with Mrs. Bayley's employment to be classified as either an injury or a disease under the legislation. The symptoms of the trigger thumb first appeared when Mrs. Bayley was travelling from her doctor's surgery to her home, which meant they did not arise in the course of her employment. Furthermore, the medical evidence suggested that the condition was unlikely to be connected to her employment. Despite Mrs. Bayley's criticisms of the medical evidence, the Tribunal was not persuaded that the necessary employment-related connection existed.

In light of these findings, the Tribunal affirmed the decision under review, dismissing Mrs. Bayley's claim for compensation. The Tribunal determined that there was insufficient evidence to establish that the trigger thumb was connected to her employment, and therefore, it was not compensable under the relevant legislation.

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

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Ratio Decidendi

Legal Principle Established

On consideration of the medical evidence, it appears to the Tribunal that the following issues need to be determined:(a)Was Mrs Bayley’s right trigger thumb per se an injury (other than a disease) (under s 5A) or a disease (under s 5B)?(b)If not, was Mrs Bayley’s right trigger thumb an injury or a disease by virtue of its relationship with her carpal tunnel syndrome?(c)Was Mrs Bayley’s right trigger thumb the result of the operation on 20 May 2014, so as to attract the provisions of s 4(3) of the Act?Consideration The medical evidence points clearly to the fact that Mrs Bayley suffers from trigger thumb (a form of tenosynovitis) of her right hand, and the Tribunal finds that this is the appropriate diagnosis of her claimed condition. Whether Mrs Bayley’s thumb condition falls within the definition of an injury (s 5A) or of a disease (s 5B), the Act requires that it bear a relationship with her employment for it to be compensable. Subject to the other provisions of the legislation, it is an injury if this arises out of, or in the course of, her employment, or it is a disease if it was contributed to, to a significant degree, by her employment. Counsel for Comcare submitted that the condition suffered by Mrs Bayley, if it is work-related, is a disease. But its abrupt onset in mid-2014 may suggest that it amounts to a sudden or identifiable physiological change, the description used by the High Court in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 to define an injury for the purposes of the Act. The Tribunal sets aside this question of whether it is an injury or disease, however, as it appears on the evidence that the condition does not carry the necessary nexus with her employment required under either s 5A or s 5B. The symptoms first appeared as she travelled from the doctor’s surgery to her home, and so they could not be said to have arisen in the course of her employment. On the question of whether the condition was one arising out of (s 5A), or was significantly contributed to (s 5B) by, her employment, the medical evidence appears to be firmly in one direction. The opinion of all three doctors was that it was unlikely there was any connection between the nature of her work and her trigger thumb condition. Mrs Bayley was critical of the evidence of Doctors Thai and Masson. She pointed out that Dr Masson had not done a full medico-legal examination of her, and as such did not have a full occupational history for the purposes of assessing her condition. She pointed out that there were factual errors in the written reports of both doctors, although she omitted to put those errors to Dr Thai in cross-examination and Dr Masson was not called as a witness. She suggested that Dr Thai might be inexperienced in report writing; indeed, he admitted under cross-examination that this was the first matter of this kind he had dealt with for Comcare. She described his supplementary report of 21 August 2015 as inconclusive, careless and misleading.

Division	GENERAL DIVISION
File Number(s)	2015/1310
Re	Anastasia Bayley
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President Gary Humphries
Date	29 January 2016
Place	Canberra