de Gail and Comcare (Compensation) - [2018] AATA 2309

de Gail and Comcare (Compensation) [2018] AATA 2309 (20 July 2018)
Division:GENERAL DIVISION
File Number(s): 2016/2545
Re:Nicole de Gail
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:20 July 2018
Place:Brisbane

I affirm the decision under review.
.................................[Sgd].......................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – liability rejected for bilateral lateral epicondylitis condition – whether condition is an injury or disease – condition was not significantly contributed to by employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14
CASES
Zickar v MGH Plastic Industries Pty Limited (1995) 187 CLR 310
Health Insurance Commission v Van Reesch and Anor [1996] FCA 1118
Commonwealth v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
20 July 2018
BACKGROUND

The applicant, Ms Nicole de Gail, started working with the Department of Defence on
17 March 1998. She is currently employed by the Department at the APS 6 level.
On 9 September 2015 the applicant lodged a workers compensation claim for “bilateral lateral epicondylitis” affecting her left and right elbows, which she stated was caused by her “usual duties – typing, general computer work.”[1] She noted that the “pain on-set was gradual and became progressively worse over the course of 3 weeks”. She stated that she first noticed the injury on 9 January 2015 at 9am, and sought medical treatment on
[1] Exhibit A, T-documents, T3.
30 January 2015.
On 15 January 2016 the respondent made a determination to reject liability for “aggravation of lateral epicondylitis (bilateral)” pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’). The delegate of the respondent outlined that they were satisfied that the applicant suffered an ailment, but they considered that her employment was not significant in the development of the ailment.
On 12 February 2016 the applicant requested a reconsideration of the determination of 15 January 2016. In her request the applicant withdrew the part of her claim relating to her left elbow. She stated, “I am happy to forgo the claim with regard to my left elbow.”[2]
[2] Exhibit A, T-documents, T20.2, at p. 197.
On 11 March 2016 a delegate of the respondent made a decision to affirm the determination.
On 11 May 2016 the applicant lodged an application for review with this Tribunal.
ISSUES
The primary issue to be determined in this matter is whether the respondent is liable to pay compensation for the applicant’s claimed injury pursuant to s 14 of the SRC Act. In that respect, I must consider the following issues:
a)Whether the applicant suffered from a ‘disease’ for the purposes of s 5B of the SRC Act, which was contributed to, to a significant degree, by her employment; and
b)Whether the applicant suffered an ‘injury (other than a disease)’ or an aggravation of an ‘injury (other than a disease)’ for the…

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 de Gail and Comcare (Compensation)

Details

AGLC: de Gail and Comcare (Compensation) [2018] AATA 2309
Case: [2018] AATA 2309
Decision Date: 20 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against a decision by Comcare to reject liability for a bilateral lateral epicondylitis condition. The applicant contended that her employment had significantly contributed to this condition.

The court was required to determine whether the applicant's bilateral lateral epicondylitis constituted an injury or disease for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and if so, whether her employment had significantly contributed to its development.

The court found that the applicant's condition was most probably caused by activities related to moving house, relying on contemporaneous medical evidence from general practitioners. These records indicated the applicant reported elbow pain after moving house and mentioned heavy lifting. Expert opinion also supported the view that manual lifting, rather than computer-related actions or extensive handwriting, was more likely to cause such a condition. The court noted that the applicant did not mention any workplace contribution to her condition when she first sought medical attention. Consequently, the court concluded there was no cogent evidence that the applicant's employment had significantly contributed to or aggravated her condition.

The decision under review was affirmed.

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

On 20 November 2015 Ms Sharyn Hewston, a colleague of the applicant, advised her manager of a diary entry dated 27 July 2015 which she had reportedly made a few days after a conversation with the applicant. This entry recorded:[10]“Walking to work from VBB talking to Nicole. She mentioned she’d been playing her digital piano all weekend. She advised that she bought it because noise of regular piano echoed however now could put headphones on and play whenever.”EVIDENCE[10] Exhibit A, T-Documents, T8.1, at p. 30.Dr Adrian Morris Dr Adrian Morris provided detailed clinical notes to the Tribunal pursuant to a summons request. Dr Morris’s notes cover the period 25 February 2014 to 10 October 2016. In his notes Dr Morris mentions that the applicant was an elite netball player from the age of 16 to 23.[11] More recently the applicant has participated in social netball. On 22 September 2014 Dr Morris noted that the applicant had played “last week for 1st time – knee in brace and enjoyable”.[12] Throughout October to December 2014 Dr Morris reported that the applicant continued to play netball around once a week. [11] Clinical notes of Dr Adrian Morris, at p. 73.[12] Clinical notes of Dr Adrian Morris, at p. 62. On 16 December 2014 Dr Morris noted that the applicant was in the process of moving house.[13] [13] Clinical notes of Dr Adrian Morris, at p. 54. On 8 April 2015 Dr Morris noted that the applicant’s elbow pain had been “resolved” through the injection she received.[14] Throughout April 2015 Dr Morris noted on three different occasions that the applicant had been active by playing guitar and cleaning her house.[15][14] Clinical notes of Dr Adrian Morris, at p. 44.[15] Clinical notes of Dr Adrian Morris, at pp. 43, 41 and 40. On 22 and 27 May 2015 Dr Morris noted that the applicant had again experienced some aches in her elbows.[16][16] Clinical notes of Dr Adrian Morris, at pp. 35 and 37. During the remainder of 2015 Dr Morris reported several instances of the applicant experiencing pain in her elbows. She continued to seek treatment for those pains. On 27 April 2016 Dr Morris noted that the applicant was experiencing a good recovery in her right elbow. She was participating in “everyday work, driving, carrying groceries, general cleaning all fine with no reaction described” and “slowly building up housework as increased pain when overexerted”. He reported that her left elbow was now “fully resolved” and there was “no pain”, as rest and a reduction in work had allowed its recovery.[17][17] Clinical notes of Dr Adrian Morris, at p. 9. On 16 May 2016 Dr Morris noted that the applicant had “no issues with elbow for 4 weeks, ongoing physio without issue”.[18] [18] Clinical notes of Dr Adrian Morris, at p. 10. On 9 June 2016 Dr Morris reported that the applicant moved house again, and experienced no issues with her arms other than normal soreness.[19] The applicant used removalists for most of the work. [19] Clinical notes of Dr Adrian Morris, at p. 7.

Decision

Reasons for decision

While the applicant does not bear an onus of proof in these proceedings, the applicant cannot succeed unless there is evidence upon which I can make a finding that the employment of the applicant significantly contributed to her condition. There is no cogent evidence that the lateral epicondylitis condition of the applicant is an ailment that was contributed to by her employment. There is no medical evidence upon which I can rely to support such a contention. I have read the records of the attendance by the applicant upon the general practitioners on 30 January 2015 and on 11 February 2015 in relation to her elbow conditions; at that time she made no mention of any workplace contribution. There is also no cogent evidence that the employment of the applicant has in some way aggravated any pre-existing elbow condition of the applicant.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent submits that as the applicant does not suffer from a disease or injury, the respondent is not liable for the claimed condition under s 14 of the SRC Act. The respondent seeks that the reviewable decision be affirmed.CONSIDERATION When the applicant notified her employer of her condition on 22 May 2015 she indicated that she had initially thought that the condition was due to her moving house. I consider that her moving house is the most probable cause of her condition. In coming to this conclusion I rely upon contemporaneous medical evidence. A record of Dr Alam, general practitioner, indicates that on 30 January 2015 the applicant attended Dr Alam who diagnosed the applicant with left tennis elbow; the record indicates that the applicant had a strained left tennis elbow and she had “moved houses recently”. A record of Dr Price, general practitioner, indicates that on 11 February 2015 the applicant reported “sore right elbow, started after moving house, pain with long period of flexion, heavy lifting, no swelling or redness”. I appreciate that the applicant disputes the record of Dr Price, but Dr Price has not been called as a witness to challenge the contents of her record. The record of Dr Price that the applicant had a “sore right elbow” does not support the contention of the applicant at the hearing that the onset of pain in the right elbow was not until April 2015, which she claims is supported by scans and medical reports. Indeed, the report of Dr Price indicates that the onset of pain was much earlier than April 2015. I have relied upon the opinion of Dr Kevat who had concluded that it is most likely that the condition of the applicant was as caused by “activities relating to moving house”. Dr Kevat has provided cogent reasons for his conclusion, remarking that it is unlikely “that computer related actions or extensive handwriting could generate the force to produce an intra-substance tendon tear; manual lifting is more likely to do so”. The fact that Dr Price recorded that the applicant on 11 February 2015 had mentioned “heavy lifting” makes me come to the conclusion that the involvement of the applicant in heavy lifting has caused both the left and right elbow conditions of the applicant. Dr Douglas has also stated in her report of 8 February 2016 that the epicondylitis condition is associated with manual work. I rely upon this report as well as Dr Kevat’s opinion that heavy lifting is more likely to cause the condition. Having regard to this opinion I also consider that Dr Kevat was correct in concluding that the injury to both elbows had probably occurred at the same time. The applicant had relied upon reports of Ms Cairns, physiotherapist, and Dr Hackney, general practitioner. I give my reasons why I do not give great weight to both of these reports. Ms Cairns, physiotherapist, in her report of 8 December 2015, considers that the return of the applicant to work was the “main driver” of the condition of the applicant. Ms Cairns has provided as the basis for her opinion that it was when she returned to full-time employment that her current condition began. However, Ms Cairns does not appear to have had access to the general practitioner records which refer to the condition having developed after the house move.