Delaney and Comcare (Compensation) - [2020] AATA 1772

Delaney and Comcare (Compensation) [2020] AATA 1772 (15 June 2020)
Division:GENERAL DIVISION
File Numbers: 2016/5808 and 2018/4562
Re:Sharon Delaney
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:15 June 2020
Place:Melbourne

The decision under review in matter 2016/5808 is affirmed.
The decision under review in matter 2018/4562 is affirmed.
...[sgd].....................................................................
Member
Catchwords
COMPENSATION – accepted conditions of synovitis and tenosynovitis, adhesive capsulitis of shoulder and lateral epicondylitis (left) – claim for aggravation of asymptomatic degenerative cervical spondylosis – whether employment contributed to rendering condition symptomatic – claim under s.14 of the Safety Rehabilitation and Compensation Act 1988 – refused – decision affirmed – nerve block treatment – whether treatment in relation to an injury – section 16(1) – claim for medical expenses refused – decision affirmed.
Legislation
Safety Rehabilitation and Compensation Act 1988
Cases
Pratt and Comcare [2004] AATA 1281
PMT Partners Pty Ltd (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
REASONS FOR DECISION
Member R West
15 June 2020

This matter concerns the review of four decisions of the Respondent to deny claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Act) by the Applicant in relation to her employment with the Australian Quarantine Inspection Service (AQIS) between April 2008 and December 2009.
BACKGROUND
The Applicant was employed by AQIS as an animal quarantine officer/bio-security officer. She commenced employment on a non-permanent basis on 21 April 2008 and moved to a permanent position on or about 23 November 2008.
As an animal quarantine officer/bio-security officer the Applicant’s duties involved the care of animals, principally cats and dogs, held in quarantine in the AQIS facility located in Spotswood, Victoria. Her duties required her to clean kennels and cat pens, feed the animals and provide day-to-day care of the animals in quarantine.
The Applicant performed her full range of duties until July 2009 after which she worked either light or modified duties until she ceased work entirely in December 2009.
On 27 July 2009, the Applicant made a claim for compensation. In her claim form the Applicant claimed that she had sustained injuries affecting her arms, including her hands, shoulders and left elbow in performing her normal duties.[1] On 14 October 2009, the Respondent accepted liability under s.14 of the Act for synovitis and tenosynovitis (left), adhesive capsulitis of shoulder (left) and lateral epicondylitis (left),[2] and the Applicant received compensation for time off work and medical expenses in relation to the accepted condition.
[1] T-documents in mater 2018/4562, T4 at p.17.
[2] T-documents in mater 2014/4056, T6.
On 1 July 2011, the Respondent accepted liability under s.14 of the Act for a secondary condition of unspecified injury to shoulder upper arm.[3]
Application 2014/4056
[3] Ibid T28 at p.159.
On 29 April 2014, the Respondent determined that the Applicant suffered a 10% permanent impairment in respect of her accepted psychological condition of adjustment reaction and mixed anxiety and depressed mood.[4] This was varied…

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 Delaney and Comcare (Compensation)

Details

AGLC: Delaney and Comcare (Compensation) [2020] AATA 1772
Case: [2020] AATA 1772
Decision Date: 15 June 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Delaney, against decisions of the respondent, Comcare, to refuse compensation claims made under the *Safety Rehabilitation and Compensation Act 1988* (Cth). The applicant had accepted conditions of synovitis and tenosynovitis, adhesive capsulitis of the shoulder, and lateral epicondylitis of the left arm. The primary dispute revolved around a claim for aggravation of an asymptomatic degenerative cervical spondylosis, with the applicant alleging that her employment contributed to rendering this condition symptomatic. A secondary dispute concerned a claim for medical expenses related to a nerve block treatment, which Comcare had refused on the basis that it was not treatment in relation to an injury. The decision was made by R West M of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were twofold. Firstly, whether the applicant's employment contributed significantly to the aggravation of her pre-existing, asymptomatic degenerative cervical spondylosis, thereby constituting an "injury" for the purposes of the Act. Secondly, if an injury was established, whether the nerve block treatment constituted "medical treatment" in relation to that injury, as defined by section 5A of the Act, thereby entitling the applicant to compensation for its cost. Comcare also raised alternative arguments regarding the applicant's failure to provide written notice of the alleged neck injury as soon as practicable, or to make a proper claim, as required by sections 53 and 54 of the Act respectively.

The Tribunal considered the nature of the applicant's duties, which involved physically demanding tasks such as handling heavy animal food, cleaning large volumes of animal waste, grooming and bathing animals, hosing down stables, climbing ladders, assisting with veterinary procedures involving lifting animals, and managing strong, pulling dogs. Despite the arduous nature of these duties, the Tribunal concluded that the applicant had not sustained a neck injury to which her employment contributed to a significant degree. The Tribunal found that the applicant's neck condition was primarily degenerative and constitutional in nature, and that any pain or discomfort experienced did not meet the threshold for an "injury" under the Act. Furthermore, the Tribunal determined that the nerve block treatment was not medical treatment in relation to an injury as defined by section 5A of the Act.

Consequently, the Tribunal affirmed the decisions under review in matters 2016/5808 and 2018/4562, meaning that Comcare's refusal of the claims for aggravation of cervical spondylosis and for the nerve block treatment was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In respect of both applications, the Respondent contends:a.That the Applicant did not sustain any neck injury to which her employment contributed to a significant degree, and that her condition before and after November 2008 involved degenerative changes and was constitutional in nature, and if the Applicant had symptoms of pain or discomfort in respect of her neck they did not constitute an injury for the purpose of the Act; andb.In the alternative, if the Applicant did sustain a neck injury to which her employment contributed significantly, the Applicant is not entitled to compensation because she failed to give written notice of the injury as soon as practicable after she became aware of the injury[12] or has failed to make a proper claim in respect of the injury.[13] [12] As required by s.53(1) of the Act.[13] As required by s.54 of the Act.EVIDENCE In conducting the review, the Tribunal has had regard to:a.Each of the documents lodged with the Tribunal by the Respondent pursuant to sections 37 and 38AA of the AAT Act in matters 2014/4056, 2014/6705, 2016/5808 and 2018/4562 (T-Documents);b.The oral evidence of:i.the Applicant;ii.Dr Ales Aliashkevich;iii.Dr Erin Marie Hatherell;iv.Mr Etherington;v.Mr Angelo Ravaneschi; vi.Dr Scott Malcolm Fairbairn; vii.Dr Tony Kostos; andviii.Mr Iain Kelman; andc.the documents tendered by each party as listed in Annexure A.NATURE OF THE APPLICANT’S DUTIES A central consideration in assessing the issues in this case is the nature and extent of the work performed by the Applicant during the period of the Applicant’s employment with AQIS between April 2008 and December 2009. The Applicant described her duties in her written statement filed with the Tribunal[14] as follows:[14] Exhibit A1, as amended in evidence: Transcript 13 May 2019 at pp.17-18.a.The job was essentially looking after animals in the live animal import area.b.There were a wide range of animals including cats, dogs, horses, alpacas and birds.c.Her duties included:i.Feeding the animals, which involved handling heavy slabs of canned wet food or bags of dry food and cutting up large rolls of wet food requiring her to take the rolls from the refrigerator, cut them up and put portions in the animals’ dinner trays before returning the trays to the refrigerator;ii.Cleaning animal faeces which involved filling large, black, plastic garbage bags with dog faeces and placing them in a vehicle to transport them to a dumpster, and if the vehicle was not available this required carrying them to the dumpster, often more than one at a time. At the dumpster it was necessary to lift the lid and fling each bag up and over the edge of the dumpster. She described this as heavy and arduous work;iii.Grooming and bathing dogs;iv.Sweeping out and hosing out stables (with a hose like a fire hose);v.Climbing ladders to pull out bird nests;vi.Assisting with veterinary work, requiring her to lift animals on and off tables and in and out of bathtubs;vii.Hosing out kennels;viii.Walking multiple dogs on a lead which could be difficult to control and would pull forcefully in all directions;ix.Picking up dog bedding; x.Freshening water bowls;xi.Scrubbing, sterilising, mopping and sweeping clinic rooms, kitchens and dog grooming areas, including washing and hanging up items;xii.Cleaning windows; andxiii.Restacking supplies, involving some heavy boxes, cartons, or cans of food.

Decision

Reasons for decision

The Tribunal therefore concludes that the C6 nerve root block procedure for which Mr Etherington sought approval on 4 April 2016 was not medical treatment in relation to an injury within the meaning of s.5A of the Act and the Respondent is not liable to pay for the cost of the treatment.DECISIONS The decisions under review in matters 2016/5808 and 2018/4562 are affirmed.

Ratio Decidendi

Legal Principle Established

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