Crouch and Comcare

Case [2013] AATA 608

[2013] AATA 608

Division GENERAL ADMINISTRATIVE DIVISION

File Number

 2012/0940

Re

 Janet Crouch

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President RP Handley

Date 29 August 2013
Place Sydney

The decision under review is affirmed.

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Deputy President RP Handley

CATCHWORDS

WORKERS' COMPENSATION – Commonwealth Employees – whether applicant suffers from a disease in accordance with the Act – whether applicant's employment contributed to a significant degree to her condition – whether applicant's condition resulted in incapacity for work or impairment – no specific diagnosis found – employment did not contribute to a significant degree to applicant's condition – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 33(1AA)

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14

CASES

Comcare v Sahu-Khan (2007) 156 FCR 536

Dwyer and Comcare [2013] AATA 564
Tippett v Australian Postal Commission (1998) 27 AAR 40

SECONDARY MATERIALS

Nikloai Bogduk and Jayantilal Govind, 'Cervicogenic headache: an assessment of the evidence on clinical diagnosis, invasive tests and treatment, (October 2009) 8 The Lancet p 959

REASONS FOR DECISION

  1. Ms Crouch has applied for the review of a decision made by Comcare refusing her claim for workers compensation for an injury while she was working at Centrelink’s Call Centre at Coffs Harbour.

    BACKGROUND

  2. Ms Crouch, who is now 61, commenced employment as a Customer Services Adviser at Centrelink’s Call Centre at Coffs Harbour in June 1999. Initially, she worked ‘full-time’, for 37½ hours over five days a week, but after about six months, reduced this to working four days a week, and, in 2008, to 25 hours over three days a week.

  3. Ms Crouch states that in March 2009 she was experiencing pain in the base of her neck and mentioned this to her general practitioner, Dr Ian Scott, when she went to see him about an infection from which she was then suffering. On 13 August 2009, Ms Crouch experienced severe pain radiating from the back of her neck and was taken to hospital for treatment. Thereafter, she had various investigations and treatments with, she says, little benefit. On 7 July 2011, after being medically assessed for Centrelink, Ms Crouch accepted retirement from Centrelink on the ground of invalidity.

  4. On 27 May 2011, Ms Crouch completed a claim for workers compensation stating that her claimed injury had been diagnosed as “[r]ight sided temporomandibular joint dysfunction & muscle contraction headache”, the date of injury being approximately 2.00 pm on 13 August 2009. She said that mid-morning on that day, she experienced the “onset of intense ‘facial’ pain down right side of face, neck and shoulder” which resulted in an ambulance being called and her being taken to Coffs Harbour Base Hospital. Ms Crouch said use of the “headset/computer appears to have triggered the ‘event’”, pain which she had previously experienced in March 2009.

  5. On 11 August 2011, a delegate of Comcare refused Mr Crouch’s claim on the ground that she was not satisfied that the claimed condition was contributed to, to a…

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AGLC
Crouch and Comcare [2013] AATA 608
Case
[2013] AATA 608
Decision Date

CaseChat Overview and Summary

Ms Crouch, a former employee of Centrelink, applied to the Administrative Appeals Tribunal for a review of a decision by Comcare to deny her claim for workers' compensation. The claim was based on an alleged injury sustained during her employment at the Centrelink Call Centre in Coffs Harbour. The primary legal issue was whether Ms Crouch's employment contributed to a significant degree to her condition, which was diagnosed as right-sided temporomandibular joint dysfunction and muscle contraction headache. Additionally, the court had to determine whether her condition resulted in incapacity for work or impairment.

The Tribunal considered medical evidence from Dr Chris Walls, an Occupational Physician, who concluded that Ms Crouch's condition was not work-related. Dr Walls opined that Ms Crouch was suffering from a chronic pain syndrome, the cause of which was unclear, and he did not accept that her call centre work contributed to her condition. Dr Walls explained that occupational overuse syndrome, which might be relevant to call centre work, generally develops gradually and improves when the activity ceases. However, Ms Crouch's condition had a sudden onset, which was not consistent with a work-related condition.

After reviewing the evidence, the Tribunal affirmed the decision of Comcare. The Tribunal was not satisfied that Ms Crouch's condition met the definition of an 'injury' under the Safety, Rehabilitation and Compensation Act 1988. As Ms Crouch's condition did not qualify as an 'injury' under the Act, Comcare had no liability to pay compensation. Consequently, the decision to deny the compensation claim was upheld.

The Tribunal's decision was that the review of Comcare's decision was affirmed, and no compensation would be paid to Ms Crouch.

Orders

Orders of the court

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Background

Background to the litigation

Ms Crouch has applied for the review of a decision made by Comcare refusing her claim for workers compensation for an injury while she was working at Centrelink’s Call Centre at Coffs Harbour.BACKGROUND Ms Crouch, who is now 61, commenced employment as a Customer Services Adviser at Centrelink’s Call Centre at Coffs Harbour in June 1999. Initially, she worked ‘full-time’, for 37½ hours over five days a week, but after about six months, reduced this to working four days a week, and, in 2008, to 25 hours over three days a week. Ms Crouch states that in March 2009 she was experiencing pain in the base of her neck and mentioned this to her general practitioner, Dr Ian Scott, when she went to see him about an infection from which she was then suffering. On 13 August 2009, Ms Crouch experienced severe pain radiating from the back of her neck and was taken to hospital for treatment. Thereafter, she had various investigations and treatments with, she says, little benefit. On 7 July 2011, after being medically assessed for Centrelink, Ms Crouch accepted retirement from Centrelink on the ground of invalidity. On 27 May 2011, Ms Crouch completed a claim for workers compensation stating that her claimed injury had been diagnosed as “[r]ight sided temporomandibular joint dysfunction & muscle contraction headache”, the date of injury being approximately 2.00 pm on 13 August 2009. She said that mid-morning on that day, she experienced the “onset of intense ‘facial’ pain down right side of face, neck and shoulder” which resulted in an ambulance being called and her being taken to Coffs Harbour Base Hospital. Ms Crouch said use of the “headset/computer appears to have triggered the ‘event’”, pain which she had previously experienced in March 2009. On 11 August 2011, a delegate of Comcare refused Mr Crouch’s claim on the ground that she was not satisfied that the claimed condition was contributed to, to a significant degree, by her employment. Ms Crouch sought a reconsideration of this decision and, on 5 January 2012, another delegate of Comcare decided to affirm the decision on the same ground. On 3 March 2012, Ms Crouch applied to the Tribunal for a further review. LEGISLATION AND ISSUES The relevant legislation in respect of claims for workers’ compensations by Commonwealth employees is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an injury suffered by an employee which results in incapacity for work. ‘Injury’ is defined in by s 5A to mean:(1)(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Evidence

Evidence Before The Court

The principal issue for the Tribunal to determine is whether Ms Crouch sustained an injury in accordance with s 5A. This requires consideration of:(1)whether Ms Crouch suffers from a disease in accordance with s 5B(1); (2)whether her condition was contributed to, to a significant degree, by her employment at the Centrelink Call Centre; and(3)whether her condition has resulted in incapacity for work or impairment. MEDICAL EVIDENCEDr Chris Walls Dr Chris Walls, Occupational Physician, provided a report at the request of Comcare dated 1 August 2013 and gave evidence by conference telephone at the hearing. He had previously examined Ms Crouch for a fitness to work assessment on 12 August 2010 and prepared a report dated 16 August 2010 and also a supplementary report dated 28 January 2011. In the report dated 28 January 2011, Dr Walls said of Ms Crouch’s condition that “[t]he most sustainable diagnosis is of a right sided temporomandibular joint (TMJ) dysfunction.” He said that in his opinion, Ms Crouch was totally and permanently incapacitated for work because of her condition and said he would support a full invalidity retirement for her. In his report dated 1 August 2013, there having been further investigations of Ms Crouch’s condition since his last report, Dr Walls stated:The diagnosis is unclear and at this time, in my opinion, Ms Crouch is best described as suffering from a chronic pain syndrome affecting the right side of the face, the right occipital area and right cervical region. The chronic pain syndrome has arisen from unknown causes.Dr Walls said he did not accept that Ms Crouch’s work in a call centre environment gave rise to this condition. In his opinion, it is not a work-related condition. In oral evidence at the hearing, Dr Walls said he recognises the existence of occupational overuse syndrome and has written a couple of short papers on this. It is an area in which he is interested. This syndrome usually arises where a person has prolonged periods of activity without sufficient recovery time, commonly involving the upper limbs – forearms and hands. The resulting pain can migrate to the shoulders and neck. Treatment for this condition is basic pain relief in conjunction with increased physical fitness and adjustment of posture. Dr Walls acknowledged that no treatment is particularly successful. Dr Walls said the sudden onset of severe pain is not what one expects with musculo-skeletal conditions such as occupational overuse syndrome. Such conditions generally develop gradually and when the activity in question stops, the person slowly recovers. Similarly, if work aggravates such a condition, one would expect to see an improvement in symptoms when the person stops work. Dr Walls said Ms Crouch’s condition is unusual and he reiterated his opinion that it was not caused by her work. He described her work as a “coincidence in the onset” of the condition which could occur independently of the work environment. Dr Walls said he has treated people who have worked in call centres and has never seen symptoms like those experienced by Ms Crouch.

Decision

Reasons for decision

In conclusion, I am not satisfied that Ms Crouch’s satisfies the definition of disease in s 5B(1) of the SRC Act. Consequently, it is not an ‘injury’ in accordance with the definition in s 5A and there can, therefore, be no liability on the part of Comcare to pay compensation to Ms Crouch pursuant to s 14 of the SRC Act.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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