Demian and Comcare (Compensation) - [2016] AATA 318

Demian and Comcare (Compensation) [2016] AATA 318 (17 May 2016)

Division

GENERAL DIVISION

File Number(s)

2015/2259

Re

Joelinda Demian

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr Damien Cremean, Senior Member

Date 17 May 2016

Place Melbourne
The decision under review is affirmed.
................................[sgd]........................................
Dr Damien Cremean, Senior Member
COMPENSATION — ailment — bilateral carpal tunnel syndrome — whether compensable ailment – whether employment aggravated ailment — whether employment contributed to aggravation of an ailment to a significant degree — decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 7(7),14,
Cases
Comcare v Lofts (2013) 217 FCR 220
Comcare v Reardon (2015) 148 ALD 356
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Muscat and Australian Postal Corporation [2016] AATA 13
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Dr Damien Cremean
17 May 2016

This Application is made to review a decision of the Respondent made on 18 March 2015.
By that decision. the Respondent affirmed a determination made on 2 January 2015 that it was not liable to pay compensation to the Applicant under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) in respect of carpal tunnel both wrists (bilateral carpal tunnel syndrome).
The Applicant, Ms Demian, gave sworn evidence at the hearing and called medical witnesses. The Respondent called a medical witness and two further witnesses, both work colleagues of the Applicant. Each of the witnesses was cross-examined.
In what follows I provide an outline of the evidence of each witness.
Outline of Evidence
The Applicant
The Applicant, Ms Demian, is aged 36 years and was born on 11 April 1980.
The Applicant is married with three children. She is a former smoker who commenced smoking at age 14 but who ceased in 2005, although she still does have the occasional cigarette. Since around 2009 she has been running a small waxing business (called Simply Smooth Curves) from her home.
The Applicant, in sworn evidence, confirmed that the contents of her Witness Statement were true and correct. The following is taken from her oral evidence and from her Statement of Facts and Contentions. Much of it is uncontroversial, in any event.
Ms Demian commenced work with the Department of Defence on 7 November 2006, when she was about 26 years of age. She worked initially as a Data Entry Clerk in the Department’s Finance section as a fulltime ‘temp’ and from 8 April 2007 as a full time employee. Previously she had studied at University (commencing in about 1998, but finding she was not suited to it) and had worked for Bunnings, the Commonwealth Bank and Optus.
In about February 2012, upon returning from maternity leave, the Applicant was transferred to the Defence Publishing Service (“DPS”) in its Despatch Division. Her work there largely included packing and despatching boxes containing manuals and publications.…

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 Demian and Comcare (Compensation)

Details

AGLC: Demian and Comcare (Compensation) [2016] AATA 318
Case: [2016] AATA 318
Decision Date: 17 May 2016

CaseChat Overview and Summary

This matter concerned an application by Ms Demian against Comcare regarding a claim for compensation. The dispute centred on whether Ms Demian's condition, described as bilateral carpal tunnel syndrome (CTS), constituted a compensable ailment under the relevant legislation. The decision was made by Senior Member Dr Damien Cremean.

The court was required to determine whether Ms Demian's bilateral carpal tunnel syndrome was a compensable ailment under section 14 of the Act. Specifically, the court had to consider whether the ailment, or an aggravation of an ailment, was contributed to to a significant degree by Ms Demian's employment. This involved assessing whether the nature of her work duties, including sustained data entry and repetitive tasks, played a substantial role in the development or worsening of her condition, or if personal factors such as obesity were the primary cause.

The Senior Member reasoned that the Applicant's bilateral CTS satisfied the definition of an "ailment" under section 4(1) of the Act, or an aggravation of an ailment. The court considered the statutory definitions of "injury" and "disease" under sections 5A and 5B of the Act, noting that a disease includes an ailment or an aggravation of an ailment contributed to to a significant degree by employment. The Senior Member adopted the view that "aggravation" is synonymous with "exacerbation," citing relevant case law. The court was satisfied that the Applicant's condition met the criteria for a disease and, consequently, an injury compensable under the Act, provided it arose out of or in the course of her employment.

The Senior Member affirmed the decision under review, finding that Ms Demian's bilateral carpal tunnel syndrome was a compensable ailment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In what follows I provide an outline of the evidence of each witness. Outline of EvidenceThe Applicant The Applicant, Ms Demian, is aged 36 years and was born on 11 April 1980. The Applicant is married with three children. She is a former smoker who commenced smoking at age 14 but who ceased in 2005, although she still does have the occasional cigarette. Since around 2009 she has been running a small waxing business (called Simply Smooth Curves) from her home. The Applicant, in sworn evidence, confirmed that the contents of her Witness Statement were true and correct. The following is taken from her oral evidence and from her Statement of Facts and Contentions. Much of it is uncontroversial, in any event. Ms Demian commenced work with the Department of Defence on 7 November 2006, when she was about 26 years of age. She worked initially as a Data Entry Clerk in the Department’s Finance section as a fulltime ‘temp’ and from 8 April 2007 as a full time employee. Previously she had studied at University (commencing in about 1998, but finding she was not suited to it) and had worked for Bunnings, the Commonwealth Bank and Optus. In about February 2012, upon returning from maternity leave, the Applicant was transferred to the Defence Publishing Service (“DPS”) in its Despatch Division. Her work there largely included packing and despatching boxes containing manuals and publications. It also required computer- based data entry. On 8 October 2012 the Applicant tripped and fell at work, injuring her right side including her right wrist and right shoulder. The Respondent accepted liability under the Act for that injury to the Applicant. The Applicant was off work for about two months and in about January 2013 returned to work. She was transferred again to the DPS Tasking and Customer Service Department, working four days and 30 hours per week. This new role mainly involved Ms Demian undertaking sustained data entry duties using dual monitors. After a while however the pain in her right shoulder became such that she underwent right shoulder surgery with excision of the acromioclavicular joint with arthroplasty on 21 July 2013. Following surgery, the Applicant again returned to work within the Tasking and Customer Service Department of DPS which is where she continues to work. In early 2014, the Applicant began experiencing intermittent pain in her shoulder, arms and wrists while performing her work. She says she experienced a weight gain during that year and that her workload increased. She was told at a meeting that the workload had increased by about 40%. The Applicant says her workload increased because one co-worker retired and another was experiencing personal issues. This meant remaining duties were shared between only the Applicant and one other employee. Further, she said there were closures of other worksites meaning the premises at Laverton became, in effect, the main office. Her work was very repetitive. Around April and May 2014 the Applicant began experiencing intense pins and needles in her hands while performing work duties. She thought at first that this was due to her shoulder injury. To reduce her discomfort, the computer mouse was changed but that did not help. A left-hand keyboard was also tried, but that did not help either.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent contends there is no balanced basis for positing a firm link between the work duties of the Applicant and her CTS and points to personal factors including obesity, as the cause.Consideration By section 14 of the Act, the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. This has often been called a “gateway” provision, such as in Comcare v Lofts (2013) FCR 220 at 222. By section 4(9) of the Act, an incapacity for work means an incapacity for work suffered by an employee as a result of an injury, being incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred. An injury is defined in section 5A(1) as a disease suffered by an employee or 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 such employee’s employment. A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment. An ailment is defined in section 4(1) of the Act as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). A significant degree is defined in section 5B(3) of the Act as meaning a degree that is substantially more than material. Matters which may be taken into account by the Tribunal are set out in section 5B(2) of the Act. They include the duration of an employee’s employment (section 5B(2)(a)) and the nature of, and particular tasks involved in, that employment (section 5B(2)(b)). Other matters also may be taken into account, and section 5B places no limit on those. The question for me to determine is whether or not the correct or preferable decision is that the Applicant’s condition is compensable under section 14 of the Act. That is to say, whether her condition is an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by her employment while working in DPS. Should her condition satisfy this requirement, then it follows she has a disease under the Act and thus an injury which is compensable if it may also be said that such disease arose out of or in the course of her employment. I am satisfied it is correct to describe the Applicant as suffering bilateral CTS as described by Dr Cameron in his report. I consider that such condition satisfies the descriptor of an ailment under section 4(1) of the Act (or an aggravation of an ailment as the case may be). I also consider that, subject otherwise to satisfying section 5B of the Act, it meets the definition of a disease and likewise, subject otherwise to satisfying section 5A of the Act, it is an injury under the Act. The word aggravation in section 5B(1) is not defined in the Act except in section 4(1) as including acceleration or recurrence. I have said previously that I see the word aggravation as synonymous with exacerbation. See Muscat and Australian Postal Corporation [2016] AATA 13 at [47]. In Wiegand v Comcare Australia [2002] FCA 1464 at [21], von Doussa J said: “I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment”. In the context of that case, his Honour said “both expressions convey the same notion, namely that the depression became worse”.

Division	GENERAL DIVISION
File Number(s)	2015/2259
Re	Joelinda Demian
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr Damien Cremean, Senior Member
Date	17 May 2016
Place	Melbourne