Bryant and Comcare (Compensation) - [2016] AATA 1030

Bryant and Comcare (Compensation) [2016] AATA 1030 (15 December 2016)

Division

GENERAL DIVISION

File Number

2015/2369

Re

Diane Bryant

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J Sosso

Date 15 December 2016

Place Brisbane
The Tribunal affirms the decision under review.

..........................[Sgd]..............................................
Senior Member J Sosso
CATCHWORDS
COMPENSATION – workplace injury – cervical spondylosis - where condition of applicant suffered prior to employment - whether the employment of the applicant significantly contributed to the onset of the condition – whether employment contributed to a significant degree to the aggravation of underlying cervical spondylosis - decision under review affirmed.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14.
CASES
Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508
Comcare v Power [2015] FCA 1502;(2015) 149 ALD 286
Raman and Comcare (Compensation) [2016] AATA 122.
Tippett v Australian Postal Corporation (1998) 27 AAR 40.
REASONS FOR DECISION
Senior Member J Sosso
15 December 2016
INTRODUCTION

On 8 September 2014 Mrs. Diane Bryant (the Applicant) made a claim for workers’ compensation for neck sprain pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) – Exhibit 1 T6 p.33. The claimed condition developed on 3 September 2014 as a result of the Applicant, while at work, bending and pointing at a computer screen. She felt a pull in her neck and a pain like a shock – Exhibit 1 T6 p.38.
On 14 November 2014 Comcare (the Respondent) accepted the Applicant’s claim – Exhibit 1 T20 p.113.
On 17 December 2014 the Department of Human Services (the employer) requested a reconsideration of this determination – Exhibit 1 T25 p.140.
On 16 March 2015 the Independent Review Officer revoked the earlier determination and decided that the Applicant was not entitled to compensation for the claimed condition – Exhibit 1 T36 p.198.
The Applicant has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of the 16 March 2015 determination – Exhibit 1 T1 p.1.
The Applicant was represented at the hearing on 14 November 2016 by her husband. The Applicant called no witnesses and declined the opportunity to cross-examine Dr John Cameron. The Applicant also declined to give evidence.
The Respondent was represented by Mr Ben Dube of Sparke Helmore Lawyers. Mr Dube determined not to call Dr Cameron to give oral evidence and called no other witnesses.
With the consent of the Applicant, Mr Dube tendered a summary of key summonsed material in relation to the Applicant’s prior neck issues. This document was admitted into evidence as Exhibit 6. Before I admitted this document into evidence I gave the Applicant and her husband an opportunity to read it to ascertain if there was any contest as to the accuracy of the material contained therein. The Applicant, through her husband, raised no objection either to the admission of this document into evidence or of the accuracy of its contents.
The hearing itself focused on oral…

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.

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Details

Case: [2016] AATA 1030
Decision Date: 15 December 2016

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by Comcare to deny liability for compensation for a workplace injury. The Applicant claimed that two incidents at work, in 2010 and 2014, and a period of busy work following a flood in 2013, had caused or aggravated a condition of cervical spondylosis and left shoulder tendinopathy. The Tribunal was required to determine whether the Applicant's employment significantly contributed to the onset of her condition or contributed to a significant degree to the aggravation of her underlying cervical spondylosis.

The Tribunal considered evidence that the Applicant had been seeking medical assistance for neck and shoulder pain since at least 2005, predating the first workplace incident in 2010. Medical reports indicated that the Applicant suffered from age-related degenerative changes in her cervical spine and left shoulder. One report, prepared prior to the 2014 incident, noted that the Applicant had previously been told she had a degenerative condition following an MRI after the 2010 incident. The medical opinions concluded that the Applicant's symptoms were likely to degenerate with age and that she would experience exacerbations from time to time, particularly with static postures at work.

Ultimately, the Tribunal was not satisfied, on the balance of probabilities, that the workplace incident of 3 September 2014 contributed to a significant degree to the aggravation of the Applicant’s underlying cervical spondylosis. Consequently, the Tribunal affirmed Comcare's decision of 16 March 2015 to deny liability for compensation.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

The hearing itself focused on oral submissions by the representatives of the parties, and for the purposes of this determination the primary focus has necessarily been on the documentary evidence produced by the parties.FACTS The Applicant was born on 9 September 1957 and is currently aged 59 years. She left school in 1974 when she was 17 and worked in a number of casual jobs in both Australia and New Zealand. Initially her longest period of employment was as a retail assistant in a pharmacy. Later she was a manager of a cosmetic store and completed an Associate Diploma in Community Recreation and worked at the Salvation Army Pindari Centre in Brisbane where she provided recreational therapy for patients in the detox centre. During this time she married for the first time and gave birth to two children. When her first husband passed away the Applicant was engaged in various casual jobs. She remarried approximately 25 years ago and had two further children. She completed a Bachelor of Social Sciences at Southern Cross University majoring in human resources and communications – Exhibit 1 T4 p.21 The Applicant commenced work with Centrelink on or about 28 June 2002. In September 2014 she was a Customer Service Officer APS 4 and worked the Rockhampton Customer Service Centre, Musgrave Street Rockhampton – Exhibit 1 T6 pp. 47-49. When she first commenced duties with Centrelink the Applicant was engaged in giving one-on-one interviews to people in target groups, such as the long-term unemployed and women returning to the workforce. With the passage of time the Applicant’s duties changed to less one-on-one contact to more general customer service. The Applicant had a specially set up workstation which was ergonomically correct and worked usually Monday to Friday, 7 ½ hours per day – Exhibit 1 T4 p.22 and Exhibit 1 T10 p.63. The Applicant’s residence was a 40 minute car drive from her place of work. The Applicant states that she suffered two workplace injuries. The first incident was in 2010 when she was asked to move a large file and put it into a filing bag. The bag weighed, in her estimation, between 10 to 12 kilograms. She picked up the bag from the floor to place it on a high bench, but when doing this she noticed a slight burning discomfort in her left shoulder and the side of her neck. She reported the incident and overall had around 8 weeks off work. Investigations at the time revealed calcification in her shoulder. The Applicant underwent an ultrasound guided injection and intensive physiotherapy. The Applicant had difficulty moving her shoulder and experienced discomfort with neck movements and restriction on turning her neck from side to side. The discomfort settled but in the years thereafter she had occasional discomfort and needed to take days off work – Exhibit 2 p.3. The second incident, as previously mentioned, occurred on 3 September 2014. In between these incidents the Applicant also submitted a claim for a sprain of the shoulder and upper arm for an incident on 26 February 2013 – Exhibit 1 T11 p.68. That incident related to a busy work period processing claims following the 2013 floods – Exhibit 1 T4 p.27. Following that incident, the Applicant’s symptoms were aggravated when she had to use an alternative workstation that had not been specifically set up for her.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not satisfied, on the balance of probabilities, that the workplace incident of 3 September 2014 contributed to a significant degree to the aggravation of the Applicant’s underlying cervical spondylosis. DECISION The decision of Comcare of 16 March 2015 to deny liability to pay the Applicant compensation is affirmed.

Ratio Decidendi

Legal Principle Established

In summary, the Applicant contends, liability does not exist under section 14 of the Act for the claimed injury which occurred, or was first noticed, on 3 September 2014 – RSIFC para 4.7.CONSIDERATION The uncontested evidence before the Tribunal is that the Applicant has been seeking medical assistance for neck and shoulder pain since at least 2005. The Applicant was seen by Dr Krasser of Yeppoon Medical Centre on 9 and 13 May 2005 for pain in the neck and shoulders – Exhibit 6 p.1. She again sought medical assistance on 19 June 2008 for “overnight sudden onset of pain between the shoulders blades, great pain when moving right arm” – Exhibit 6 p.1. These visits occurred some years before the first workplace incident in March 2010. In the report of Dr Ki Douglas of 19 June 2014, which was prepared three months prior to the workplace incident the subject of the compensation claim, Dr Douglas outlines her discussions with the Applicant in relation to her ailments – Exhibit 1 T4 p.22:“Degenerative Cervical SpineMs Bryant reported that she has had an MRI at the Mater Hospital in Rockhampton some years ago following the injury of March 2010 and was told it was a degenerative condition. Since that time she has had several recurrences of left-sided neck, shoulder and upper limb pain as well as headache which she relates to static postures at work, predominantly affecting forward flexion of the neck or forward reaching when assisting customers as a self-managed services assistant. She finds her neck pain and headache are aggravated by poor posture, static postures, lifting more than 5 kg and bending down under furniture, all of which she tries to avoid. Her symptoms are usually well controlled provided she can use her own workstation, which has been properly set up for her.” Dr Douglas concluded that the Applicant has “age-related degenerative changes in the cervical spine and left shoulder” – Exhibit 1 T4 p.25. Dr Douglas diagnosed the Applicant as having (p.25):1Degenerative cervical spine.2Degenerative tendinopathy left shoulder.” The prognosis of the Applicant is also instructive (p.26):“In the short term Ms Bryant will be able to return to her normal work with the restrictions as specified. In the long term it is likely that her cervical spine and shoulder tendinopathy will degenerate with age and, like many people in her age group required to sit at a computer, she will from time to time have an exacerbation of neck and shoulder symptoms.” Dr Kahler reported (Exhibit 1 T24 p.136) that the Applicant had “degenerative disc changes, particularly at C5-C6 with foraminal stenosis to the left.” Overall, though, he opined that there was no gross neurological compression. Dr Coroneos noted (Exhibit 1 T27p.149) that the external appearance of the entire spine was “normal”. He concluded that there was “no evidence of radiculopathy or myelopathy. There was minor restriction of cervical movements...Remainder of neurological examinations were normal”.

Division	GENERAL DIVISION
File Number	2015/2369
Re	Diane Bryant
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J Sosso
Date	15 December 2016
Place	Brisbane