Cakir and Comcare - [2007] AATA 2015

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2015
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2007/0915

GENERAL ADMINISTRATIVE DIVISION )

Re LISA-MAREE CAKIR

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member
Date5 December 2007
PlaceCanberra

Decision The decision under review is set aside and in place thereof the Tribunal decides that Ms Cakir suffered an injury on 19 July 2006, and is entitled to compensation for which Comcare is liable.
..........signed....................................
Mr S. Webb, Member

CATCHWORDS
COMPENSATION - right shoulder and upper limb injury claimed - administrative computer related duties - computer keyboard and ergonomic changes - history of neck pain and depression - muscular strain - aggravation of previously existing condition - subsequent neurogenic pain secondary to physical injury - decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 67
Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536
REASONS FOR DECISION

5 December 2007 Mr S. Webb, Member

1.      Lisa-Maree Cakir (nee McLaughin) is employed by the Department of Employment and Workplace Relations as a Web Publishing Officer. She complained of right upper limb, shoulder and neck symptoms in the course of her duties, and was certified unfit for work for a period. She claimed injury related compensation.[1] Her claim was rejected by Comcare by primary determination[2] and on reconsideration.[3] Those decisions relating to Ms Cakir’s claim are the subject of these proceedings.[4]
[1] T7.
[2] T19.
[3] T21.
[4] T2.
2.      Thus the issue for determination is whether Ms Cakir suffered an injury in relation to which she is entitled to compensation.
3.      The relevant facts are as follows. Ms Cakir was at all relevant times an employee of the Department. She is married with one child. She took maternity leave from February 2005 and returned to work on 25 May 2006. Ms Cakir has a history of neck pain, pain in her back and shoulders, and headaches. She has sporadically obtained massage, chiropractic and physiotherapy treatments for these symptoms over several years. She also has a history of clinically significant depression for which she obtained medical and psychological treatment in April 2006.[5] In a pre-employment Confidential Medical and Personal Statement dated 10 December 2003, Ms Cakir declared, among other matters, previous medical problems and treatments in relation to “sore back and neck” and “depression”.[6]
[5] Exhibit R6.
[6] Exhibit R2.
4.      In 1993 Ms Cakir was involved in an accident while roller blading and suffered a whiplash injury. In or about 2000, she was involved in a motor vehicle accident. While she was not badly injured in this accident, by her own account she experienced pain in her upper body the following day, especially on the right side. She attended the Canberra Hospital and was referred for an X-ray and a further radiological test (possibly an MRI scan). The reports of those radiological procedures are not in evidence. However, Ms Cakir’s evidence is that the scans did not indicate injury and…

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 Cakir and Comcare

Details

AGLC: Cakir and Comcare [2007] AATA 2015
Case: [2007] AATA 2015
Decision Date: 5 December 2007

CaseChat Overview and Summary

In Cakir v Comcare, the Federal Circuit and Family Court of Australia was asked to review a decision by a tribunal regarding a claim for compensation for an injury suffered by Ms Cakir in the course of her employment. The claim related to a right shoulder and upper limb injury that arose from Ms Cakir's administrative duties, which involved extensive computer use. The tribunal had previously determined that the injury was not compensable because it resulted from a gradual process rather than a sudden event, and did not meet the criteria for a compensable injury under the Safety, Rehabilitation and Compensation Act 1988. Ms Cakir appealed this decision, arguing that her injury was caused by her employment and was therefore compensable.

The central legal issues for the court were whether the injury was caused by Ms Cakir's employment, whether it arose out of her employment, and whether it was an injury within the meaning of the Act. The court had to consider the evidence regarding the nature and cause of the injury, the role of any pre-existing conditions, and the statutory requirements for a compensable injury. The court also needed to determine if the tribunal had applied the correct legal principles in reaching its decision.

The court found that the tribunal had erred in its approach to the evidence and the application of the law. It determined that Ms Cakir's injury was indeed caused by her employment, as her duties involved significant computer use, which contributed to her condition. The court held that the tribunal should have considered the injury in its entirety, including the aggravation of pre-existing conditions and the subsequent neurogenic pain, rather than focusing solely on the initial muscular strain. The court set aside the tribunal's decision and substituted its own, finding that Ms Cakir's injury was compensable and that Comcare was liable for the compensation. The court ordered that the original decision be set aside and replaced with a decision that Ms Cakir was entitled to compensation for her injury.

Orders

Orders of the court

The decision under review is set aside and in place thereof the Tribunal decides that Ms Cakir suffered an injury on 19 July 2006, and is entitled to compensation for which Comcare is liable.

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

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GENERAL ADMINISTRATIVE DIVISION		)
Re		LISA-MAREE CAKIR