Chimungeni-Brassington and Comcare (Compensation)

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Chimungeni-Brassington and Comcare (Compensation) [2022] AATA 219 (15 February 2022)

Division:GENERAL DIVISION

File Number(s):     2020/4689

Re:Jane Chimungeni-Brassington  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:15 February 2022

Place:Canberra

The decision under review is affirmed.

……...[Sgd]………
Mr S. Webb, Member

Catchwords

WORKERS COMPENSATION – physical injuries resulting from fall at work – claim for compensation – subsequent notification of right shoulder condition – jurisdiction – scope of claim – frank injury or disease – onset and diagnosis of symptoms – employment contribution not established to a significant degree – progress of degenerative condition – aggravation – not established condition made worse by employment – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 54, 60, 62, 64

Cases

Comcare v Muir [2016] FCA 346

Lees v Comcare [1999] FCA 753

Sellick v Australian Postal Corporation [2009] FCAFC 146

Szabo v Comcare [2012] FCAFC 129

Woodhouse v Comcare [2021] FCAFC 95


REASONS FOR DECISION

Mr S. Webb, Member

15 February 2022

  1. One day, in the course of her employment as a Senior Policy Officer at the Australian Fisheries Management Authority (AFMA), Jane Chimungeni-Brassington[1] missed her step and fell down a flight of stairs. She sustained a number of injuries in the fall. Comcare accepted her initial compensation claim and paid compensation for medical treatment expenses and incapacity to work. Almost one year later, Ms Chimungeni-Brassington notified Comcare of a right shoulder problem that she attributes to the fall or to other circumstances in her employment. Comcare decided to reject this claim by primary determination and on reconsideration. Ms Chimungeni-Brassington disagrees with these decisions and applied for review by the Tribunal.

    [1] The Applicant goes by different names, including Jane Chimugeni-Brassington, Jane Brassington and Jane Mbendo. These names appear in some of the documents. Adequate explanations have been given for her use of family and marital names. I am satisfied that each of these names refers to the Applicant.

    Issues

  2. The issues for determination are:

    (a)the scope of the Tribunal’s jurisdiction to decide Ms Chimungeni-Brassington’s right shoulder claim on 17 December 2019 and, in particular, whether the Tribunal has jurisdiction to decide if Ms Chimungeni-Brassington sustained a right shoulder injury when she fell down a flight of stairs on 16 May 2019 in the course of her employment;

    (b)whether Ms Chimungeni-Brassington suffered from a right shoulder disease, being an ailment to which her employment contributed to a significant degree;

    (c)whether Ms Chimungeni-Brassington sustained a frank right shoulder injury, being an injury (other than a disease); and

    (d)whether Comcare is liable to pay Ms Chimungeni-Brassington compensation in respect of a right shoulder injury.

  3. Aside from the jurisdictional point, the issues engage s 5A, s 5B and s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act).

    Jurisdiction

  4. Ms Chimungeni-Brassington asserts that the Tribunal has jurisdiction to consider her right shoulder injury under the original claim for compensation she made after and in respect of injuries she sustained…

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Details
Case
[2022] AATA 219
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Chimungeni-Brassington against a decision of the Administrative Appeals Tribunal (AAT) which affirmed a determination by Comcare. Ms Chimungeni-Brassington had lodged a claim for compensation with Comcare following a fall at work on or about 9 December 2019, subsequently notifying Comcare of a right shoulder condition. The core dispute revolved around whether Ms Chimungeni-Brassington had sustained an injury to her right shoulder as a result of the incident, and consequently, whether Comcare was liable to pay compensation.

The primary legal issue before the Tribunal was to determine whether Ms Chimungeni-Brassington had established that she sustained an injury to her right shoulder on or about 9 December 2019, or whether her employment contributed to her condition to a significant degree. This involved assessing whether the condition was a "frank injury" or a "disease" arising from her employment, and whether any pre-existing degenerative condition had been aggravated by her work.

The Tribunal found that it was not established that Ms Chimungeni-Brassington sustained an injury to her right shoulder in or about 9 December 2019. The evidence did not demonstrate that her employment contributed to her condition to a significant degree, nor was it established that her employment had made any pre-existing degenerative condition worse. Accordingly, the Tribunal concluded that Comcare had no liability to pay compensation pursuant to the claim made on 17 December 2019. The decision under review was affirmed.

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

As it is not established that Ms Chimungeni-Brassington sustained an injury to her right shoulder in or about 9 December 2019, Comcare has no liability to pay her compensation pursuant to the claim she made on 17 December 2019.Decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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