Doorbar and Comcare (Compensation) - [2019] AATA 4003

Doorbar and Comcare (Compensation) [2019] AATA 4003 (2 October 2019)
Division: GENERAL DIVISION
File Numbers: 2017/1521 & 2017/7422
Re:Janine Doorbar
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Damien Cremean, Senior Member
Date:2 October 2019
Place:Melbourne

In application 2017/1521, the Tribunal sets aside the decision under review and in substitution decides that the Applicant is entitled to compensation for medical treatment and incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for ‘lateral epicondylitis (right)’ arising out of or in the course of her employment.
In application 2017/7422, the Tribunal sets aside the decision under review and in substitution decides that the Applicant is entitled to compensation under section 14 of the SRC Act for chronic regional pain syndrome.
Further, the Respondent shall pay the Applicant’s costs and disbursements in respect of both applications under section 67 of the SRC Act.
[sgd]........................................................................
Damien Cremean, Senior Member
Catchwords
WORKERS’ COMPENSATION - lateral epicondylitis – chronic regional pain syndrome – Department of Defence - repetitive keyboard and mouse activity – tennis elbow – compensation for injury – compensation for medical expenses – compensation for injuries resulting in incapacity – decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Re Cross and Comcare [2018] AATA 52
Telstra Corporation Ltd v Hannaford (2006) 141 FCR 253
REASONS FOR DECISION
Damien Cremean, Senior Member
2 October 2019
INTRODUCTION

The Applicant is Ms Janine Doorbar and she has lodged two applications with the Tribunal.
In application 2017/1521 the Applicant seeks review of a decision made on 24 February 2017. This decision affirmed a determination made on 6 December 2016 that she has no present entitlement to compensation for medical treatment and incapacity under sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘lateral epicondylitis (right)’.
In application 2017/7422 the Applicant seeks review of a decision made on 14 November 2017; which affirmed a determination made on 25 September 2017 that she is not entitled to compensation under section 14 of the SRC Act for chronic regional pain syndrome.
LEGISLATION
Section 14(1) of the SRC Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Sections 16 (1) and (3) of the SRC Act provide:
1 Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
3 For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by 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 Doorbar and Comcare (Compensation)

Details

AGLC: Doorbar and Comcare (Compensation) [2019] AATA 4003
Case: [2019] AATA 4003
Decision Date: 2 October 2019

CaseChat Overview and Summary

This matter concerned an application by Ms Janine Doorbar (the Applicant) for review of a decision by Comcare (the Respondent) to cease her compensation payments for lateral epicondylitis and chronic regional pain syndrome. The Applicant had been employed by the Department of Defence since 2002, where a significant part of her role involved repetitive keyboard and mouse activity. The dispute centred on whether the Applicant's conditions constituted an "injury" under the relevant legislation and, if so, whether her employment contributed to them to a significant degree.

The primary legal issues before the Tribunal were whether the Applicant had suffered an "injury" as defined by section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (the Act), specifically a "disease," and if so, whether that disease was contributed to, to a significant degree, by her employment, as required by section 5B of the Act. The Tribunal was also required to consider whether the Applicant's symptoms predated her employment or were caused by factors unrelated to her work, as argued by the Respondent.

The Tribunal accepted the Applicant's evidence in its entirety, finding her to be a truthful witness. It considered the definitions of "injury" and "disease" under sections 5A and 5B of the Act, respectively. Section 5A defines an injury to include a disease, while section 5B defines a disease as an ailment contributed to to a "significant degree" (meaning substantially more than material) by employment. The Tribunal noted the Respondent's argument that the Applicant had experienced symptoms of lateral epicondylitis prior to her claimed injury date and that other factors may have contributed to her condition. However, the Tribunal found that the Applicant's evidence regarding the onset and nature of her pain, particularly in relation to her mouse usage, was credible.

The Tribunal set aside Comcare's decision. It was satisfied that the Applicant had suffered an injury within the meaning of the Act, and that her employment had contributed to her condition to a significant degree.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Respondent considers that the issues to be determined in application 2017/7422 include whether the Applicant on the evidence is entitled to compensation under section 14 of the Act for a chronic regional pain syndrome; which in turn includes determining whether she has suffered an injury under section 5A of the Act (namely, a ‘disease’); but if satisfying at all the definition in section 5A, whether the Applicant’s chronic regional pain syndrome was contributed to, to a significant degree, by her employment so as to satisfy the definition of ‘disease’ in section 5B of the SRC Act.EVIDENCE In what follows I set out a summary of the evidence of each of the witnesses. Ms Janine Doorbar The Applicant, as I have noted, in sworn evidence confirmed her Witness Statement of 18 June 2018 In that Statement, the Applicant said that she is seeking review of Comcare’s decision of 6 December 2016 to stop her payments of compensation benefits for lateral epicondylitis and chronic pain syndrome. The Applicant says she started work with the Department of Defence in about August 2002 when about 37 years of age. She had previously worked for Australia Post. A large part of her role with the Department of Defence involved repetitive keyboard and mouse activity. This was different to her previous work. The Applicant gave evidence that in about 2010 or 2011 she had pain in her right forearm and she noticed small bumps in the forearm muscles and a stinging pain there. She was told by her GP that she was suffering tennis elbow and needed to rest. So she took some time off work and the pain settled down and she was able to continue working. From time to time however, she would get an ache in her forearm. In August or September 2012 she again experienced pain in her right forearm and this pain lasted longer and was more severe than before. At this time she was doing a lot of computer work and she noticed the pain was worst when she was using the computer mouse over a long period. The Applicant says she had a problem with prolonged use of the mouse because she had to use her right hand and arm outstretched. She says she noticed some swelling in the elbow when she had experienced pain. Initially, she took anti-inflammatory tablets. But on one particular day she felt a sharp pain in the right elbow region when opening a heavy glass door. The Applicant saw Dr Sarah Leer, and had an ultrasound. She was advised she had Lateral Epicondylitis and a tear in the tendon of the right forearm. After that, the Applicant says she followed up with Dr Rod Towie. He referred her to Dr Daniel Lewis, rheumatologist, who she saw in November 2012. She was given an autologous blood/plasma enriched injection into her elbow which, while painful, improved her condition over the following weeks. The Applicant resumed a graduated return to work program in late 2012. But she only lasted a week or so due to pain in her right arm when she was doing keyboard work. The Applicant commenced another return to work program in 2013/14, gradually increasing her hours. This continued for a few months, until she was told to transfer to Victoria Barracks but this did not seem to eventuate. She had previously experienced problems with a person (‘AR’) who was a supervisor there; and this caused the Applicant much anxiety.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In re–examination Dr Stockman agreed that pains (radial pains going down the extensor aspect and lateral aspect of the elbow) are consistent with right lateral epicondylitis and that these pains can coexist with right lateral epicondylitis. CONSIDERATIONApplicant’s evidence I accept the evidence of Ms Doorbar in its entirety. At no point did I think that she was fabricating her evidence or exaggerating it. Accordingly, I am satisfied I should accept what she said as a witness of truth.Right lateral epicondylitis Under s 5A of the Act an injury is defined as:(a)a disease suffered by an employee; or(b)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, the employee’s employment(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment Under Section 5B of the Act a disease is defined as:(1) In this Act:disease means:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a)the duration of the employment;(b)the nature of, and particular tasks involved in, the employment;(c)any predisposition of the employee to the ailment or aggravation;(d)any activities of the employee not related to the employment;(e)any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3) In this Act:significant degree means a degree that is substantially more than material. Under Section 4 of the Act an ailment is defined as:any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). As I have noted, the Respondent argues, in the first instance, that the Applicant’s employment did not contribute to her condition but that other factors that were non-employment related did so. In particular, the Respondent makes reference to early reports by her of tennis elbow among other conditions. Reference is made also to the Reports of Dr Ramage and to the notes of Dr Stockman. Specifically, it is said that Ms Doorbar had experienced symptoms of lateral epicondylitis before her claimed injury in September 2012. Mention is made of her having attended Dr Popescu in 2010 or 2011 who had diagnosed her with right lateral epicondylitis. It is said that the evidence suggests she had experienced symptoms of that condition prior to 2010, in about 2008 or 2009.