Legal Research
Cases
Daaboul and Comcare

Daaboul and Comcare

Case [2002] AATA 1208 22 November 2002

Chronic Pain Disorder

Liability for Compensation and Medical Treatment

Permanent Impairment

Workers Compensation Law

Type to search within this case.

DECISION AND REASONS FOR DECISION [2002] AATA 1208

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1682

GENERAL ADMINISTRATIVE DIVISION     )              N2001/573
           Re      Jeanette Daaboul
  Applicant
           And    Comcare
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

Date22 November 2002
PlaceSydney

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal ("the Tribunal") decides: 1. In relation to the reviewable decision dated 29 September 2000 (N2000/1682), the decision is set aside and in substitution therefor, the Tribunal decides that: (i) The Applicant suffers from an injury pursuant to section 4 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in the form of a chronic pain disorder referrable to carpal tunnel syndrome and is entitled to compensation pursuant to section 14 of the Act on and from 16 February 1999. (ii) The Respondent is liable to pay for Ms Daaboul's reasonable medical treatment costs pursuant to section 16 of the Act on and from 16 February 1999, including, if medically indicated, participation in a pain management control treatment program. (iii) The Applicant has ongoing incapacity as a result of her workplace injuries and is entitled to incapacity payments pursuant to section 19 of the Act on and from 16 February 1999. 2. In relation to matter N2001/573, the reviewable decision of 20 April 2001 is affirmed, such that Mrs Daaboul is not entitled to compensation for permanent impairment pursuant to section 24 of the Act, nor is she entitled to compensation for non-economic loss pursuant to section 27 of the Act. 3. The Respondent is liable to pay Mrs Daaboul's reasonable legal costs as agreed or taxed in relation to matter N2000/1682.

..............................................
Ms S M Bullock
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – carpal tunnel syndrome - chronic pain disorder – liability for compensation and medical treatment – permanent impairment

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24, 27
AUTHORITIES
Comcare v Mooi (1996) 42 ALD 495
Re Budarick and Comcare [2000] AATA 673
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Re Polder and Comcare [2001] AATA 780
Re Bianchi and Comcare [2001] AATA 805
Re Lewis and Comcare [2002] AATA 197
Re Fiedler and Comcare [2001] AATA 518
Re Pavic and Comcare (1996) 45 ALD 409
Comcare v Fielder (2001) 115 FCR 328
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Re Toohey and Australian Postal Corporation (AAT 13360, 9 October 1998)

REASONS FOR DECISION

22 November 2002 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mrs Jeanette Daaboul, of the reviewable decisions made on 29 September 2000 (T38, N2000/1682) and 20 April 2001 (T9, N2001/573). The reviewable decision on 29 September 2000 affirmed a determination made on 26 March 1999 (T29, N2000/1682) that no compensation was payable to Mrs Daaboul under any section of the Safety, Rehabilitation…

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 Daaboul and Comcare

Details

AGLC: Daaboul and Comcare [2002] AATA 1208
Case: [2002] AATA 1208
Decision Date: 22 November 2002

CaseChat Overview and Summary

The applicant, Mrs Daaboul, sought a review of a decision made by Comcare, which declined to compensate her for a condition resulting from her employment. Mrs Daaboul was diagnosed with carpal tunnel syndrome and a chronic pain disorder, for which she had received medical treatment. The dispute centred on whether her condition was caused by her employment duties or other factors, and if so, whether Comcare was liable for her compensation and ongoing medical treatment. The case was heard in the Administrative Appeals Tribunal.

The central legal issues the Tribunal had to address were whether Mrs Daaboul's carpal tunnel syndrome and chronic pain disorder were caused by her employment duties, and if so, the extent of Comcare's liability for her compensation and medical treatment. This required an assessment of the medical evidence and the degree of permanent impairment, as well as a determination of the causation of her conditions. The Tribunal had to consider Dr Guirgis' opinion that Mrs Daaboul's work and repetitive duties were responsible for her carpal tunnel syndrome and the extent to which her employment contributed to her chronic pain disorder.

The Tribunal found that Mrs Daaboul's carpal tunnel syndrome was caused by her employment duties, which involved repetitive tasks that placed strain on her wrists and hands. Dr Guirgis' evidence was pivotal in establishing the link between her work and the onset of her condition. The Tribunal also acknowledged that her employment contributed to her chronic pain disorder, which was exacerbated by her work duties. Consequently, Comcare was held liable for her compensation and medical treatment. The Tribunal assessed her degree of whole body impairment based on the Comcare Guide, considering both the physical and psychological impacts of her conditions.

In conclusion, the Tribunal ordered Comcare to compensate Mrs Daaboul for her carpal tunnel syndrome and chronic pain disorder, recognising that her employment was a significant contributing factor. Comcare was also directed to provide ongoing medical treatment for her conditions. The Tribunal's decision underscored the importance of workplace conditions in the development of occupational injuries and the responsibility of employers to provide adequate compensation and support.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mrs Daaboul continues to work on the program although longer hours. She has no specific treatment, takes no medication apart from "Panadol" for pain, and over the past six months would take approximately four tablets per week. Mrs Daaboul consults Dr Maniam, her treating Orthopaedic Surgeon, approximately every two or three months at which time he will examine her and also issue a medical certificate. Mrs Daaboul told the Tribunal that currently her left hand is becoming more painful because she uses her left hand more than the right. MEDICAL EVIDENCEDR M GUIRGIS, ORTHOPAEDIC SURGEON Dr Guirgis originally examined Mrs Daaboul on 20 April 1993 and provided a report dated 20 April 1999 (T30, N2000/1682). Dr Guirgis provided evidence by telephone. Dr Guirgis reported that Mrs Daaboul had started feeling twinges of pain in the region of her right thumb and hand in 1992. There is no reference in his report to Mrs Daaboul being on maternity leave at that time. Dr Guirgis' opinion was that the signs and diagnosis were consistent with repetitive work which caused chronic soft tissue injuries representing a cumulative traumatic stress disorder to the right arm, left wrist and neck which took the form of: Dr Guirgis maintained that Mrs Daaboul's work and repetitive duties were responsible for the onset of her carpal tunnel syndrome. In oral evidence to the Tribunal, in relation to the issue of maternity leave, Dr Guirgis considered that the hormonal disturbance which occurs during pregnancy "would make her more vulnerable to highlight the underlying chronic problem" (Transcript, 13 February 2002). No other explanation was provided. In relation to the left carpal tunnel syndrome, Dr Guirgis stated that he would not operate unless they were both objective and clinical signs indicating this. In relation to Dr Guirgis' reports of swelling in Mrs Daaboul's left and right forearm and wrist, he distinguished swelling from there being fat deposits in her arms and wrists. Dr Guirgis opined that fat deposition would not be localised to the front of the lower forearm and this is what he found with Mrs Daaboul. He found there was both swelling and tenderness. Dr Guirgis undertook the "two point discrimination test" in addition to his other examination and this provided symptoms of pain (Transcript, 13 February 2002). Dr Guirgis did not have the benefit of other tests such as X-rays and nerve conduction tests. Dr Guirgis was also not aware of Mrs Daaboul's increase in duties to 25 hours. Dr Guirgis stated "I think Mrs Daaboul's problem now is a chronic pain problem and whatever is there will be there everlasting". (Transcript, 13 February 2002). Dr Guirgis noted that Mrs Daaboul might become better in dealing with the pain she experiences and that she also would benefit from hydrotherapy, physiotherapy and swimming. In a further report of 20 April 1999 (T30, p54), Dr Guirgis estimated the following whole body impairment percentages according to the "Guide to the assessment of the degree of permanent impairment" ("the Comcare Guide"):

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Daaboul and Comcare [2002] AATA 1208

Most Recent Citation

Pepperell and Australian Postal Corporation [2004] AATA 11

Cases citing this decision · 2 of 2 shown

Butler and Telstra Corporation Limited
[2006] AATA 576

…Comcare AAT No.12294, 14 October 1997 Barker v Telstra Corporation Ltd [2003] AATA 757 Carboni v Comcare [2005] AATA 409 Daaboul v Comcare [2002] AATA 1208 REASONS FOR DECISION 30 June 2006 Ms N Bell, Senior Member 1. Ms Butler worked with Telstra for 13 years commencing at Goondawindi, and moving to Wawrick and t…
Pepperell and Australian Postal Corporation
[2004] AATA 11

…pett v Australia Postal Corporation [1998] FCA 335 Re Howard and Australian Postal Corporation [2002] AATA 400 Re Daaboul and Comcare [2002] AATA 1208 Re Roe and Comcare [2003] AATA 126 Casarotto v Australian Postal Commission (1989) 86 ALR 399 REASONS FOR DECISION 9 January 2004 Mr O Rinaudo, Member 1. Mrs Peppere…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

Re Lewis and Comcare
[2002] AATA 197 Para 2

…The Tribunal distinguishes Mrs Daaboul's circumstances to those discussed in Re Lewis and Comcare [2002] AATA 197. In that case, the Tribunal was not able to be shown a demonstrable nexus between the condition engendering pain and the Applicant's employment. The Tribunal in this matter finds that Mrs Daaboul suffe…
Comcare v Fiedler
[2001] FCA 1810 Para 7

…The Tribunal notes the Full Federal Court decision in Comcare v Fiedler (2001) 115 FCR 328 and the difficulty of the previous Tribunal in that matter applying Table 9.4 of the Comcare Guide. This Tribunal notes the Tribunal decision in Re Fiedler and Comcare (supra) in which the Tribunal took the term "digital dexter…
Bianchi and Comcare
[2001] AATA 805

…are [2000] AATA 673 Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 Re Polder and Comcare [2001] AATA 780 Re Bianchi and Comcare [2001] AATA 805 Re Lewis and Comcare [2002] AATA 197 Re Fiedler and Comcare [2001] AATA 518 Re Pavic and Comcare (1996) 45 ALD 409 Comcare v Fielder (2001) 115 FCR 3…
Polder and Comcare
[2001] AATA 780 Para 14

…ain disorder was found to arise out of Mr Budarick's soft tissue injury to his back. The Tribunal has also gained guidance from Re Polder and Comcare [2001] AATA 780. In that case, the Tribunal found that the Applicant's work history contributed, at least to an extent, to the Applicant's condition. This flowed fro…
Fiedler and Comcare
[2001] AATA 518 Para 1

…Also of guidance in Mrs Daaboul's matter is Re Fiedler and Comcare [2001] AATA 518 in which the Tribunal found that Mr Fiedler had chronic pain in both his hands referable to a previously accepted bilateral carpal tunnel syndrome for which the Respondent had ceased liability. That Tribunal discussed the issue of t…
Budarick and Comcare
[2000] AATA 673 Para 14

…nal is then to consider whether or not Mrs Daaboul's chronic pain disorder is compensable. The Tribunal notes the decision in Re Budarick and Comcare [2000] AATA 673 in which chronic pain disorder was found to arise out of Mr Budarick's soft tissue injury to his back. The Tribunal has also gained guidance from Re…
Tippett v Australian Postal Corporation
[1998] FCA 335 Para 15

…ll in the context of the carpal tunnel syndrome being, as the medical opinion indicates, a constitutional problem. The Tribunal notes the decision in Tippett v Australian Postal Corporation (1998) 27 AAR 40 in which Finkelstein J noted: " What Beattie [ Commonwealth v Beattie (1981) 53 FLR 191] also makes clear is that the symptom of an injury,…
Comcare v Mooi, Paul
[1996] FCA 580 Para 26

…boul's wrists and elsewhere have not been adequately identified or explained such that they amount to a diagnosable medical condition as discussed in Comcare v Mooi (1996) 42 ALD 495 nor has it been established that any ongoing symptoms either arise in compensable circumstances or give rise to an entitlement to compensa…
Treloar v Australian Telecommunications Commission
[1990] FCA 511 Para 14

…a material degree by the employee's employment with the Commonwealth. This Tribunal notes that in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316: "The causal connection [between the disease and employment] must be established on the probabilities and not left in the area of possibility or conj…
Asioty v Canberra Abattoir Pty Ltd
[1989] HCA 40 Para 15

…battoir Pty Ltd v Asioty (unreported Fed Ct, FC, 26 April 1988) a proposition which was not disturbed on appeal at Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533."…
Commonwealth Banking Corporation v Percival
[1988] FCA 240 Para 15

…rt of the injury in respect of which compensable is payable. This proposition was confirmed by the Full Court in Commonwealth Banking Corp v Percival (1988) 20 FCR 176; 9 AAR 206 where it was said that while for many medical purposes it may be necessary to draw a distinction between the underlying injury and the sym…
Commonwealth of Australia v Beattie, Kathleen
[1981] FCA 89 Para 15

…notes the decision in Tippett v Australian Postal Corporation (1998) 27 AAR 40 in which Finkelstein J noted: " What Beattie [ Commonwealth v Beattie (1981) 53 FLR 191] also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which compensable is…
Commonwealth of Australia v Beattie
[1981] FCA 88 Para 15

…l problem. The Tribunal notes the decision in Tippett v Australian Postal Corporation (1998) 27 AAR 40 in which Finkelstein J noted: " What Beattie [ Commonwealth v Beattie (1981) 53 FLR 191] also makes clear is that the symptom of an injury, that is the experience of the injury, is a part of the injury in respect of which comp…

Legislation cited in this decision · 2

Safety, Rehabilitation and Compensation Act 1988 (Cth)
14, 16, 19, 24, 27, 4 7 mentions (from Para 1)
Administrative Appeals Tribunal Act 1975 (Cth)
1 mention (from Para 2)