Chimungeni-Brassington and Comcare (Compensation)

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…