Bianchi and Comcare - [2001] AATA 805

DECISION AND REASONS FOR DECISION [2001] AATA 805

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/593

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TERESITA BIANCHI
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member, Dr J D Campbell, Member

Date24 September 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes its decision that the Respondent has, since 15 September 1999, been liable to pay compensation to the Applicant in accordance with the Act. The Respondent is to pay the Applicant's costs in accordance with the Tribunal's General Practice Direction.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
Workers' Compensation – overuse syndrome – wrist and shoulder injury – whether respondent liable for ongoing compensation payments – injury resulting in incapacity to work - regional pain syndrome
Safety, Rehabilitation and Compensation Act 1988, ss 4(1) "ailment", "approved Guide", "disease", "impairment", "injury", "permanent", 14(1), 19(1), (2), (3), 24(1), (2), (3), (4), (5), (6), (7), 27, 28.
Re Wood and Comcare [1999] AATA 263
Re Jeremic and Comcare (AAT 5975, 20 June 1990)
Re Labi and Comcare (AAT 13560, 21 December 1998)

REASONS FOR DECISION

24 September 2001 M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF THE APPLICATION

The application for review in this matter arises from an injury which Ms Teresita Bianchi ("the Applicant") sustained on 7 April 1990 during the course of her employment as a catering assistant with Australian Airlines / Qantas. On 7 April 1990 she slipped and fell on a wet floor whilst washing up in the wash-up area of the kitchen, landing on her right hand. There is no dispute over whether this injury was sustained – liability was later accepted (T33, T51).
The Applicant lodged a claim for compensation with Comcare (the "Respondent") on 20 April 1990 in respect of the injury to her right wrist, which she incurred as a result of the fall (T5). Liability was later extended to include the condition of her right shoulder (T2).
The primary determination was made on 6 October 1999. This determination ceased liability in respect of the Applicant's claim for compensation related to "sub-acromial rotator cuff impingement of the right shoulder affecting the right wrist", with effect from 15 September 1999. The Respondent determined that the Applicant was not entitled to receive ongoing compensation on this claim under any section of the Safety, Rehabilitation and Compensation Act1988 ("the Act") (T139).
The Applicant requested a reconsideration of the Respondent's determination in two letters dated 15 September 1999 (T138) and 26 November 1999 (T142), and she attached Dr Sabag's report (T136) to this request.
In a decision dated 3 April 2000, an Independent Review Officer within Comcare affirmed the primary determination (T149). He concluded that any work-related component to her condition had resolved.
On 19 April 2000, the Applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision of 3 April 2000 on the basis that "the decision is against the weight of the medical evidence"…

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 Bianchi and Comcare

Details

AGLC: Bianchi and Comcare [2001] AATA 805
Case: [2001] AATA 805
Decision Date: 24 September 2001

CaseChat Overview and Summary

Bianchi and Comcare was a case heard by the Administrative Appeals Tribunal in Australia, involving a claim for workers' compensation by the Applicant, who was previously employed by Qantas as a kitchen hand/catering assistant. The Applicant sought ongoing compensation payments for a wrist and shoulder injury that she sustained during her employment. The case was contested on the grounds that the Respondent, Comcare, was not liable for the compensation payments as the Applicant's injuries did not qualify as an 'injury' under the Safety, Rehabilitation and Compensation Act 1988.

The legal issues before the court were whether the Respondent was liable for ongoing compensation payments under the Act and if the Applicant's injuries constituted an 'injury' as defined by the Act. The Applicant argued that her injuries, including regional pain syndrome, warranted ongoing compensation payments, while the Respondent contended that the injuries did not qualify as an 'injury' under the Act.

The Tribunal found that the Respondent was liable to pay compensation to the Applicant, and that she may qualify for incapacity payments under s 19 of the Act if she can satisfy the requirements of s 19. The Tribunal also found that the Applicant may qualify for compensation for reasonable medical treatment associated with the injury and for permanent impairment. The Tribunal set aside the previous decision and substituted its decision that the Respondent has, since 15 September 1999, been liable to pay compensation to the Applicant in accordance with the Act.

The Tribunal's decision was based on the medical evidence provided, which showed that the Applicant's injuries were work-related and resulted in incapacity to work. The Tribunal held that the Respondent was liable for ongoing compensation payments as the Applicant's injuries qualified as an 'injury' under the Act. The Respondent was ordered to pay the Applicant's costs in accordance with the Tribunal's General Practice Direction.

Orders

Orders of the court

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Background

Background to the litigation

On 19 April 2000, the Applicant applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision of 3 April 2000 on the basis that "the decision is against the weight of the medical evidence" (T1). BACKGROUND The Applicant was born in Uruguay on 6 December 1945. She lived in Uruguay until she came to Australia in 1987. She was formerly employed with Australian Airlines/Qantas from 4 January 1988 as a kitchen hand/catering assistant and retired on the grounds of ill health on 20 February 1997 (T104, T105). She has not performed any other work since leaving Qantas. The Applicant lives with her husband and has two adult children who now live independently. She has not made any previous worker's compensation claims. The Applicant is right-handed. MEDICAL EVIDENCE AND OTHER EVIDENCE/CHRONOLOGY 1990 In a medical certificate dated 7 April 1990, the date of the injury, Dr Gock diagnosed the Applicant as suffering from bruising to the right wrist (T3). Dr Sabag diagnosed the Applicant as suffering form a severe contusion of the right hand, in a medical certificate dated 12 April 1990 (T4). He also noted that specialist rehabilitation was required. An accident report, detailing the accident, was filed with the Applicant's employer on 23 April 1990 (T8). In a report dated 26 April 1990, Dr Sabag, general practitioner, found that the Applicant would be fit to resume suitable duties on 17 May 1990. He also noted that the Applicant required physiotherapy treatment (T9). Dr Giblin, orthopaedic surgeon, reported on 6 July 1990 that the Applicant had responded well to a previous injection of steroid (T10). He stated that she continued to work until 25 June 1990, "at which time she started to complain of symptoms in the right arm of an overuse syndrome", such as swelling, persistent pain and discomfort. Dr Giblin stated that: "clinically there was nothing to find on examination and she has a full range of movement. Her symptoms and negative findings are what we used to see a lot of with overuse syndrome." The Applicant was overseas between 8 August and 29 August 1990 (Exhibit R2). 1991 In a series of medical certificates (the first dated 8 January 1991 and the last dated 4 November 1991), Dr Sabag identified the nature of the Applicant's injury as "right radial distal arm and tendicity", the cause of injury as "work related" and the date of injury as "recovery from initial injury 7 April 1990". He stated that the Applicant was unfit for any duties, effectively, for the following periods in 1991: The Applicant was placed on a Rehabilitation Case Management Plan for the period 15 April 1991 – 22 July 1991 (T22). The plan stated that the injury would be treated "with physio etc then a gradual return to light duties first, then full pre-injury duties". On 16 May 1991 Dr Chen, occupational physician with Vocational Health Services Pty Ltd, diagnosed reflex sympathetic dystrophy of the right hand (T18, p25). Dr Chen made the following findings:

Evidence

Evidence Before The Court

The Applicant was born in Uruguay on 6 December 1945. She lived in Uruguay until she came to Australia in 1987. She was formerly employed with Australian Airlines/Qantas from 4 January 1988 as a kitchen hand/catering assistant and retired on the grounds of ill health on 20 February 1997 (T104, T105). She has not performed any other work since leaving Qantas. The Applicant lives with her husband and has two adult children who now live independently. She has not made any previous worker's compensation claims. The Applicant is right-handed. MEDICAL EVIDENCE AND OTHER EVIDENCE/CHRONOLOGY 1990 In a medical certificate dated 7 April 1990, the date of the injury, Dr Gock diagnosed the Applicant as suffering from bruising to the right wrist (T3). Dr Sabag diagnosed the Applicant as suffering form a severe contusion of the right hand, in a medical certificate dated 12 April 1990 (T4). He also noted that specialist rehabilitation was required. An accident report, detailing the accident, was filed with the Applicant's employer on 23 April 1990 (T8). In a report dated 26 April 1990, Dr Sabag, general practitioner, found that the Applicant would be fit to resume suitable duties on 17 May 1990. He also noted that the Applicant required physiotherapy treatment (T9). Dr Giblin, orthopaedic surgeon, reported on 6 July 1990 that the Applicant had responded well to a previous injection of steroid (T10). He stated that she continued to work until 25 June 1990, "at which time she started to complain of symptoms in the right arm of an overuse syndrome", such as swelling, persistent pain and discomfort. Dr Giblin stated that: "clinically there was nothing to find on examination and she has a full range of movement. Her symptoms and negative findings are what we used to see a lot of with overuse syndrome." The Applicant was overseas between 8 August and 29 August 1990 (Exhibit R2). 1991 In a series of medical certificates (the first dated 8 January 1991 and the last dated 4 November 1991), Dr Sabag identified the nature of the Applicant's injury as "right radial distal arm and tendicity", the cause of injury as "work related" and the date of injury as "recovery from initial injury 7 April 1990". He stated that the Applicant was unfit for any duties, effectively, for the following periods in 1991: The Applicant was placed on a Rehabilitation Case Management Plan for the period 15 April 1991 – 22 July 1991 (T22). The plan stated that the injury would be treated "with physio etc then a gradual return to light duties first, then full pre-injury duties". On 16 May 1991 Dr Chen, occupational physician with Vocational Health Services Pty Ltd, diagnosed reflex sympathetic dystrophy of the right hand (T18, p25). Dr Chen made the following findings: On 31 May 1991, Dr Salmon, anaesthetist, reported that the Applicant had features that suggested sympathetically maintained pain as part of, or in addition to, a tenosynovitis (T19). The doctor was to perform a ganglion block and obtain comparative x-rays of the hands.

Decision

Reasons for decision

The Tribunal has found that the Respondent is liable to pay compensation to the Applicant. This means that she may qualify for incapacity payments under s 19 of the Act if she can satisfy the requirements of s 19. The same is true of possible compensation payments for reasonable medical treatment associated with the injury. Now that liability under s 14 has been reinstated, the Applicant may also qualify for compensation for permanent impairment, the subject-matter of Tribunal application N2001/384.Decision The Tribunal sets aside the decision under review and substitutes its decision that the Respondent has, since 15 September 1999, been liable to pay compensation to the Applicant in accordance with the Act. The Respondent is to pay the Applicant's costs in accordance with the Tribunal's General Practice Direction.I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member.Signed: ..................................................................................... AssociateDate of Hearing 17 May 2001Date of Decision 24 September 2001Counsel for the Applicant Mr B RobisonCounsel for the Respondent Ms C Adamson

Ratio Decidendi

Legal Principle Established

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