Carboni and Comcare - [2005] AATA 409

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2003/1085

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANA CARBONI

Applicant

And

COMCARE

Respondent
DECISION

Tribunal

R Hunt, Senior Member
Dr J Campbell, Member

Date6 May 2005
PlaceSydney

Decision

The Tribunal sets aside the decision under review and in substitution decides that the Applicant was suffering from Carpel Tunnel Syndrome, which arose out of her employment and that the Respondent is liable to pay compensation to the Applicant pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988, from 18 July 2002, to date and continuing.

......................[sgd].......................
Ms R Hunt
Presiding Member

CATCHWORDS

WORKERS COMPENSATION - Injury arising out of or in the course of employment – Carpel tunnel syndrome - Effect of pregnancies – Late diagnosis cause of lateness of claim for compensation

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14 and 53

CASES

Seltsam Pty. Ltd. v. McGuiness; James Hardie & Co. Pty Limited v. McGuiness (2000) 49 NSWLR 262

Comcare v Luck (1999) 29 AAR 403

Lombardi and Comcare [2005] AATA 167 (24 February 2005)

REASONS FOR DECISION

6 May 2005 Ms Robin Hunt, Senior Member
Dr J Campbell, Member

summary

The applicant, Mrs Ana Carboni, claimed that she suffered from Carpal Tunnel Syndrome, or CTS, which was brought about by the demands of her workplace. Mrs Carboni lodged an application on 2 July 2003 for review by the Tribunal of a determination of a review officer, dated 24 May 2003, which affirmed Comcare’s denial of liability to pay compensation to Mrs Carboni. Mrs Carboni had not worked since shortly before the delivery of her third child in 1999 until late 2003. The Tribunal has decided that Mrs Carboni does suffer from CTS, that this condition is work related and that this resulted in an incapacity for work. The reasons for the Tribunal’s decision are set out below.

background

Mrs Carboni lodged her claim for compensation on 15 November 2002. She was aged 40 at the date of making her claim, having been born on 10 May 1962, in Chile. She emigrated to Australia In March 1989. The Commonwealth Employment Service (the CES), which was a precursor to Centrelink, initially employed Mrs Carboni in Australia around September 1989. Mrs Carboni claimed her duties at the CES involved significant amounts of typing, mainly with data entry. Mrs Carboni later changed employer, accepting a position with Centrelink.
In the meantime, Mr and Mrs Carboni started a family. They have three children. Mrs Carboni also conceived prior to the birth of her first child but this pregnancy did not go to term. She first conceived before 1994 and this pregnancy went for 19 weeks. She then conceived again and Gavin was born on 1 June 1994. Chantelle was born on 20 March 1998. Natalie was born on born 24 August 1999. After Gavin’s birth in 1994, Mrs Carboni had about 6 months off work. She returned to working full…

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 Carboni and Comcare

Details

AGLC: Carboni and Comcare [2005] AATA 409
Case: [2005] AATA 409
Decision Date: 6 May 2005

CaseChat Overview and Summary

Carboni was employed by the Commonwealth and brought a claim for workers' compensation after being diagnosed with Carpel Tunnel Syndrome. Comcare rejected the claim, stating that the condition did not arise out of or in the course of her employment. The matter was heard in the Administrative Appeals Tribunal. The primary issue for the Tribunal was whether Carboni's condition arose out of or in the course of her employment. A related issue was whether the late diagnosis and subsequent lateness of the claim affected the outcome.

The Tribunal found that Carboni did suffer from Carpel Tunnel Syndrome, which arose out of her employment. The Tribunal held that the condition was caused by her employment duties, which required repetitive hand movements. The Tribunal also found that the effect of Carboni's pregnancies was to aggravate the condition, but this did not exclude the possibility that the condition arose out of her employment. The Tribunal held that the late diagnosis and lateness of the claim did not affect the outcome, as the evidence showed that the condition was present before the late diagnosis. The Tribunal found that Comcare was liable to pay compensation to Carboni from 18 July 2002, to date and continuing.

Orders

Orders of the court

The Tribunal sets aside the decision under review and in substitution decides that the Applicant was suffering from Carpel Tunnel Syndrome, which arose out of her employment and that the Respondent is liable to pay compensation to the Applicant pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988, from 18 July 2002, to date and continuing.

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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