Donohue and Comcare (Compensation)

Case [2019] AATA 101

Donohue and Comcare (Compensation) [2019] AATA 101 (7 February 2019)

Division:GENERAL DIVISION

File Number            2017/1417

Re:Paul Donohue  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:7 February 2019

Place:Canberra

The reviewable decision dated 21 December 2016 is affirmed.

……………………………………….

Senior Member Linda Kirk

Catchwords

WORKER’S COMPENSATION – whether the Applicant’s claimed condition is an injury or disease – distinction between ‘injury simpliciter’ and disease – whether claimed condition is a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ – whether the Applicant’s employment contributed to the disease to a significant degree – contribution of other factors to the claimed condition – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14

Cases

Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Reardon and Comcare [2015] AATA 360
May v Military Rehabilitation and Compensation Commission(2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2016] AATA 459
Su v Comcare [2011] AATA 934

REASONS FOR DECISION

Senior Member Linda Kirk

7 February 2019

INTRODUCTION

  1. Mr Paul Donohue (‘the Applicant’) was born in 1951. He commenced employment with ACT Government Transport Canberra and City Services (‘the Agency’) in 1977. At all material times and until his retirement on 30 June 2017 he was employed as a GSO5/6 Ganger in the Road Patrol (Cold Mix).

  2. On 5 July 2016, the Applicant lodged a workers’ compensation claim in respect of ‘stress fracture right distal tibia’ affecting his right foot (‘the Claimed Injury’).[1] The date of injury was claimed to be 12 November 2015. The Applicant claimed that his condition arose as a result of ‘excessive use of [his] right foot’ when ‘pressing road mix onto pavement’.[2]

    [1] T20.

    [2] T20.

  3. On 21 October 2016, Comcare (‘the Respondent’) denied liability for the Claimed Injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) on the basis that the Applicant’s employment did not significantly contribute to the Claimed Injury.[3]

    [3] T37.

  4. In a decision dated 21 December 2016 the Respondent affirmed the determination denying liability (‘the Reviewable Decision’).[4]

    [4] T41.

  5. On 22 March 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[5]

    [5] T1.

  6. The review application was heard by the Tribunal at a hearing in Canberra on 5 and 6 September 2018. The following witnesses gave oral evidence at the hearing:

    ·the Applicant;

    ·Mr Shane Holden;

    ·Dr Kylie Scott;

    ·Dr Anthony Menz; and

    ·Dr Sean Low.

  7. The following documents were before the Tribunal:

    ·Applicant’s Statement of Facts, Issues and Contentions dated…

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Details
AGLC
Donohue and Comcare (Compensation) [2019] AATA 101
Case
[2019] AATA 101
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the claim of Mr Donohue against Comcare. Mr Donohue sought compensation for a condition he claimed arose from his employment as a labourer and electrical mechanic, primarily in footpath repair and pothole maintenance roles. The central dispute concerned whether Mr Donohue's claimed condition constituted an "injury" or a "disease" under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), and if so, whether his employment met the relevant statutory thresholds for compensation.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant's claimed condition was an "injury" (other than a disease) or a "disease" for the purposes of the SRC Act. If it was an "injury simpliciter," the Tribunal had to ascertain if it arose out of or in the course of his employment. If it was a "disease," the Tribunal needed to determine if his employment contributed to it to a significant degree, considering the contribution of other factors.

The Tribunal reasoned that the distinction between an "injury simpliciter" and a "disease" is critical, as different tests apply to establish compensability. An "injury simpliciter" requires a causal or temporal connection to employment, while a "disease" requires significant contribution from employment. The Tribunal noted that an "injury simpliciter" is generally characterised as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. After considering the evidence, including the applicant's work duties involving tasks such as using a sledgehammer, shovelling concrete, and tamping cold mix, and the supervisor's evidence regarding accepted work practices, the Tribunal was not satisfied on the balance of probabilities that the applicant had suffered an injury within the meaning of section 14 of the SRC Act.

Consequently, the Tribunal found that the respondent, Comcare, was not liable to pay compensation to the applicant for the claimed injury. The reviewable decision was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues for determination in the review are:Is the Claimed Injury an ‘injury’ or a ‘disease’ for the purposes of the SRC Act, and:(a)if it is an ‘injury’, whether the injury arose out of or in the course of the Applicant’s employment;(b)if the injury is a ‘disease’, whether the Applicant’s employment contributed to the injury to a significant degree.BACKGROUND AND CLAIMSWork history and prior medical conditions After leaving school the Applicant worked as a labourer for a construction company and in 1974 he completed an apprenticeship as an electrical mechanic.[6] He commenced work with the Agency in 1977 and, after a period in the building section, he transferred to the roadways section.[7][6] Transcript of hearing proceedings, 5 September 2018 (‘Transcript’) at page 11, lines 1-12.[7] Transcript at page 11, lines 20-23. During his oral evidence at the hearing, the Applicant told the Tribunal that he commenced footpath repairs in 1998 and undertook this work until he retired in June 2017. During the course of his employment, the Applicant had several work and non-work related medical conditions:·Heart condition – 2013 – non-compensable;·Left wrist osteoarthritis – 2009 – accepted compensable;·Inguinal hernia – 2005 – compensable; and·Lumbosacral strain – 1992 – compensable.[8][8] Exhibit A1, Applicant’s Statement of Particulars dated 23 June 2017[7].Applicant’s work duties and roadwork tasks An ACTSAFE Australia report dated 25 January 2010, prepared for the purposes of an assessment of the Applicant’s rehabilitation requirements and the suitability of his work duties with Roads Maintenance, described the Applicant’s work duties undertaken with the Roads Patrol:Mr Donohue was working predominantly in the Cold Mix team and would spend the majority of his work days repairing potholes and footpaths. He reports that the gang would also be called to attend an accident site and clear the debris from the road surface. The frequency of this activity is variable, although generally may occur twice weekly.·The employee is required to check for oncoming traffic and be sure to apply the correct Traffic Control Management Plans·The shovel, broom or foot may be used to evenly spread the cold mix in the pothole·Pressing down cold mix asphalt with a ‘rammer’. A mechanical rammer is used for large areas or the tyre of the work vehicle is run over the area in order to compress the material. The cold mix works on the chemical bonding of the material to make it strong and requires firm pressure applied with the rammer. Mr Donohue may walk over the filled pothole to use his body weight to compress the mix.[9][9] T5, 18-19. During his oral evidence, the Applicant confirmed that the description of his duties contained in an Initial Needs and Workplace Assessment Report dated 17 January 2015 was an accurate summary of his duties at this time:[10]When a footpath is damaged – resulting in a trip hazard for pedestrians, Mr Donohue is required to:·Drive a small rigid truck to the site within the ACT …·Barricades / witches hats are set up if required·Using a sledge hammer (estimated to weigh 5.5kg) to break up the affected concrete into small pieces which can be easily handled·Mr Donohue loads the broken concrete into a bucket. This is done picking up chunks of concrete piece by piece, or using a shovel. The bucket is then carried and emptied into the tray of the truck. The weight of this is determined by what Mr Donohue can manage. Estimated to vary between 5-10kg. Smaller loads can be used if required.·Small shovels of ‘cold mix’ are taken from the truck tray using a small shovel and tipped onto the repaired area. This is ‘tamped’ using his foot to press down and smooth the cold mix into the affected area. Mr Donohue advised that he performed this task in ‘layers’.[11][10] Transcript at page 12-14.[11] T31e, 124.

Evidence

Evidence Before The Court

On 1 July 2016, the Applicant provided a handwritten statement in support of his claim. He described his work activities and the impact on his foot:Every day (working) I would do footpath repairs and potholes. Since 2005 after the hernia operation was a landmark for when caution had to be taken about using the whackerpackers, and I would have to use other methods for packing the cold mix – a small job can easily be done by squashing it underfoot and then using the rammer (a handheld packing tool) to finish it off. A [indistinct] pot hole on the road or sometimes gravel temporary on the footpath - the truck wheels can do a good job if room forbids.NOW I THINK that justification by Comcare considering the case if bring to it that I having thought about my present predicament, suddenly realized that a great amount of strain would have been placed on my right foot, because of the many years, and intermittent use of this part of my body to accomplish the days work [sic]. I did have a companion worker for help but quite often just myself.[50]EVIDENCE BEFORE THE TRIBUNAL[50] T19.Shane Holden, Applicant’s Work Supervisor Shane Holden provided a written statement dated 3 September 2018[51] and gave oral evidence at the hearing. He is employed as the Works Supervisor, Routine Maintenance for the Agency. He has held the position for seven years and currently manages a team of about 26 workers engaged in a variety of maintenance tasks. He was the Applicant’s supervisor from 2012 until when the Applicant retired. The Applicant was subject to medical restrictions for the entire time he was his supervisor.[51] Exhibit A1, Statement of Shane Holden dated 3 September 2018 at A42. Mr Holden stated that the Applicant ‘was assigned tasks such as footpath repairs, sign maintenance and light depot maintenance.’[52] Attached to his written statement he included the Activity sheets completed by the Applicant between 6 October 2015 and 12 November 2015.[52] Exhibit A1, Statement of Shane Holden dated 3 September 2018 at A 42 [5]. In his oral evidence, Mr Holden agreed that from February 2014 to November 2015 the Applicant worked predominantly in the depot doing light maintenance and cleaning duties to work in with his leave reduction plan.[53] The majority of the Applicant’s outside work during this period was doing pavements, potholes and signs. He’d usually work with several people and sometimes he’d work by himself.[54] Mr Holden stated that he only worked on one occasion with the Applicant, but he would do random safety audits of his crews when he would observe their work practices and ensure they were working within safe work guidelines.[55] He did not at any stage see anything about the Applicant’s work practices that caused him concern. He never saw him stamping or stomping.[56][53] Transcript at pages 62-63.[54] Transcript at page 51.[55] Transcript at page 52, 68.[56] Transcript at page 55, line 6; page 70, line 31 In his statement, Mr Holden described the Applicant’s work duties and accepted work practices:Footpath repairs would involve cleaning the concrete, applying emulsion (adhesive) and shovelling on the cold mix. The cold mix should then be levelled out with a shovel and compacted with a square piece of steel equipment (100-150 mm in diameter and weighing around 5kg) called a tamper. In the case of a path being damaged to the point of being unsafe, the task would also involve the removal of concrete with a sledgehammer or a crowbar.It was not the accepted practice to use feet to smooth out or compact the cold mix. I don’t expect my teams to use parts of their body in that way. We provide manual handling training. I recall directing Mr Donohue to use a shovel or the tamper for this task but I do not know if Mr Donohue followed this direction as I never saw him perform footpath/pothole repairs. In relation to the cold mix it becomes harder depending upon the temperature. In my experience in working with cold mix, using your feet instead of a tamper or shovel to press it into the affected area would involve applying body weight on the mix and moving your foot to spread it.

Decision

Reasons for decision

The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an injury within the meaning of s 14 of the SRC Act. The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.DECISION The Reviewable Decision is affirmed.

Ratio Decidendi

Legal Principle Established

The Tribunal could not be satisfied on the balance of probabilities that the reported stomping activity in fact occurred. This leaves only a finding on the medical evidence that significant contribution from work was not present.[113][113] Respondent’s Submissions dated 18 September 2018, para 5.CONSIDERATION AND REASONS The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. (1) Was the Claimed Injury ‘an injury (other than a disease)’? - s5A(1)(b) SRC Act The first issue for the Tribunal’s consideration is whether the Claimed Injury for which the Applicant seeks compensation can be considered a ‘disease’ or an ‘injury other than a disease’ for the purposes of the SRC Act.Distinction between an ‘injury simpliciter’ and a ‘disease’ The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44]. An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 at [7]-[8]. Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].What is an ‘injury simplicter’? In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.