Elizabeth Prain and Comcare

Case [2014] AATA 593

[2014] AATA 593 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/6327

Re

Elizabeth Prain

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

RM Creyke Senior Member
Date 22 August 2014  
Place Canberra

The decision under review is affirmed

.....................[sgd]...................................................

RM Creyke Senior Member

Catchwords

COMPENSATION – Commonwealth employee – injury to right knee travelling on public transport to Comcare-funded medical treatment  - whether claim arose out of or in the course of employment – whether Comcare liable to pay compensation

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 6, 14 and 16.

Cases

Re Connor and Australian Postal Corporation (2009) (unreported, AATA 09/0973, 18 December 2009)

Re Hughes and Comcare (2010)(unreported, AATA 10/0775, 12 October 2010)

Humphrey Earl Ltd v Speechley (1951) 84 CLR 126

Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740

Re Perera and Comcare (2009) (unreported, AATA 09/0499, 2 July 2009)

Re Reardon and Comcare (2010) (unreported, AATA 09/342,12 February 2010)

Re Thymianos and Comcare (2009) (unreported, AATA 09/0082, 9 February 2009)

Roncevich v Repatriation Commission (2005) 222 CLR 115

Secondary Materials

Charter of Partnership between Comcare and the ACT Public Service 2011-2013

REASONS FOR DECISION

RM Creyke Senior Member

  1. Ms Elizabeth Prain sought compensation from Comcare for conditions of dislocated right kneecap, bakers cyst, osteochrondral lesion medial femoral condyle, complex medial meniscal tear, and patella chondromalia, with a date of injury of 28 May 2013.

  2. The claim was rejected on 22 August 2013, a decision upheld by Comcare on review on 2 October 2013.

  3. On 10 December 2013, Ms Prain sought further review by the Tribunal.   The matter was heard in Canberra on 2 July 2014.

    Background

  4. Ms Prain has an accepted injury described either as ‘aggravation of fibromyalgia’ or ‘aggravation of myalgia & myositis’, with a date of injury of 15 April 2011.

  5. Ms Prain reported pain due to her feet from 1998, but felt she coped reasonably well and worked full-time until 2008.  Ms Prain had foot surgery in 2008 which resulted in a failed fusion bilaterally. As a result ‘there is residual movement in the plates that were inserted at the time of surgery’. Since the surgery she has been diagnosed with chronic regional pain syndrome (CRPS) of the feet which, according to Ms Prain, extends to her knees, and with fibromyalgia. She ceased working in April 2011. On 26 September 2012, following a consent agreement at the Tribunal, Comcare accepted liability for ‘aggravation of fibromyalgia’, deemed to have occurred on 15 April 2011.

  6. The fibromyalgia results in pain in both shoulders, and in her hips, knees, wrists, fingers and more recently she has begun to experience headaches.  The pain is associated with sleep disturbance, fatigue, impaired concentration, and pins and needles. Her mobility and ability to function have been significantly reduced and she now does no exercise. Formerly Ms Prain had a history of being very athletic.

  7. In April, Dr Peter Spitzer, a general practitioner in the practice Ms Prain attends, noted…

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Details
AGLC
Elizabeth Prain and Comcare [2014] AATA 593
Case
[2014] AATA 593
Decision Date

CaseChat Overview and Summary

In the matter of Elizabeth Prain and Comcare, Ms Prain sought a review of a decision denying her claim for compensation for injuries she suffered during her travel to a medical treatment program. The dispute revolved around whether Ms Prain's injuries were sustained in the course of her employment, and if Comcare was liable to pay compensation for those injuries. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue was whether the injuries Ms Prain sustained on a train while traveling to a medical treatment program for her work-related injury were compensable under the Safety, Rehabilitation and Compensation Act 1988. Specifically, the Tribunal had to determine if the injuries arose "out of" or "in the course of" Ms Prain's employment, given that she was no longer working at the time of the incident. The relevant provisions of the Act, particularly sections 5A, 6(1)(c), 6(1)(f), and 6(1)(g), were examined to ascertain the scope of compensable injuries.

The Tribunal concluded that Ms Prain's injuries did not arise "out of" or "in the course of" her employment. The Tribunal found that Ms Prain was not traveling between her place of work and another place for the purpose of receiving medical treatment. At the time of the incident, Ms Prain had ceased working and was not traveling from her place of work. Therefore, her journey from her hotel in central Sydney to the Royal North Shore Hospital in North Sydney did not qualify as a journey between her place of work and another place. The Tribunal also noted that the term "place of work" was confined to the boundary of the building in which the employee normally works. Given that Ms Prain had ceased working, she did not fall within the compensable scope of section 6(g)(ii). Consequently, the Tribunal affirmed the original determination denying liability for the injuries sustained by Ms Prain.

Orders

Orders of the court

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Background

Background to the litigation

On 10 December 2013, Ms Prain sought further review by the Tribunal. The matter was heard in Canberra on 2 July 2014.Background Ms Prain has an accepted injury described either as ‘aggravation of fibromyalgia’ or ‘aggravation of myalgia & myositis’, with a date of injury of 15 April 2011. Ms Prain reported pain due to her feet from 1998, but felt she coped reasonably well and worked full-time until 2008. Ms Prain had foot surgery in 2008 which resulted in a failed fusion bilaterally. As a result ‘there is residual movement in the plates that were inserted at the time of surgery’. Since the surgery she has been diagnosed with chronic regional pain syndrome (CRPS) of the feet which, according to Ms Prain, extends to her knees, and with fibromyalgia. She ceased working in April 2011. On 26 September 2012, following a consent agreement at the Tribunal, Comcare accepted liability for ‘aggravation of fibromyalgia’, deemed to have occurred on 15 April 2011. The fibromyalgia results in pain in both shoulders, and in her hips, knees, wrists, fingers and more recently she has begun to experience headaches. The pain is associated with sleep disturbance, fatigue, impaired concentration, and pins and needles. Her mobility and ability to function have been significantly reduced and she now does no exercise. Formerly Ms Prain had a history of being very athletic. In April, Dr Peter Spitzer, a general practitioner in the practice Ms Prain attends, noted in his clinical notes ‘Will attend RNSH [Royal North Shore Hospital] pain clinic on 21/6/11’. Dr Spitzer had earlier made the referral to the Hospital. On 5 April 2011, Ms Prain emailed Comcare to indicate she had been approved by the RNSH Pain Research Institute to undertake the ADAPT pain management program for her fibromyalgia. The course which ran over three weeks, began on 20 May 2013. Ms Prain asked whether Comcare/Medicare should be meeting the cost. Ms Prain followed up with an email to Comcare on 11 April 2011 asking for a response to her earlier request. On 15 April 2011, Dr Michael Cousins, Director, Pain Management and Research Centre, RNSH, sent a report to Comcare that Ms Prain had completed a multi-disciplinary assessment, and he expected her to start in the program on 20 May 2013. On 7 May 2013 Comcare accepted liability for payment for the course which commenced on 20 May 2013. Part way through the course, Ms Prain suffered an accident on board a train taking her to the course. The pain caused her to withdraw from the course. It is the injuries suffered as a result of that accident which are the subject of this claim. Ms Prain does not tolerate pain medication. As a consequence, if she underwent surgery for her knee or any other condition she would need a regional spinal block or spinal cord stimulation. Therefore to date she has eschewed further surgery, although she conceded this may be an option in the future. The parties have agreed the following facts.(a)In a Tribunal consent decision dated 26 September 2012, liability was accepted under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for an ‘aggravation of fibromyalgia’ injury sustained on 15 April 2011. The Respondent has in more recent times administratively described this accepted injury as an ‘aggravation of myalgia & myositis’ injury sustained on 15 April 2011. No dispute arises in this Application as a result of the different definitions used.(b)In a letter for the Respondent dated 15 April 2013 (Attachment 1) Prof Michael Cousins (Director, Royal North Shore Hospital Pain Management Centre) asked for approval for the Applicant to participate in the ADAPT multi-disciplinary pain management program (ADAPT program).(c)In a determination dated 7 May 2013 (Attachment 2) the Respondent accepted liability under section 16 of the SRC Act for payment of the costs and associated costs for the Applicant to participate in the ADAPT program, being medical treatment reasonably required in relation to her accepted injury (however, described).(d)The Applicant commenced the ADAPT program at Royal North Shore Hospital on 20 May 2013. In order to attend the ADAPT program the Applicant’s journey involved, amongst other things, travel on a train from one of the Hyde Park Stations (Museum or St James) to St Leonards Station [in North Sydney].(e)On Tuesday, 28 May 2013 the Applicant was aboard a train travelling to St Leonards station in order to continue participation in the ADAPT program.(f)While aboard the train the Applicant injured her right knee when she fell. The Applicant has provided a statement dated 29 July 2013 (Attachment 3). Paragraph 14 sets out the Applicant’s statement as to how the injury occurred.(g)At the time of the injury, the Applicant was in an interval between two discrete periods of performance of her employment duties. She was on a journey to obtain medical treatment for a work-related injury.(h)Comcare, as the relevant authority, was responsible for the organisation of, and/or approval for, the Applicant to participate in the ADAPT program.(i)Documents produced under summons from the Royal North Shore Hospital (attachment 4) record the Applicant attending the Emergency Department on 28 May 2013, her presenting complaint being a right knee patella dislocation. The Applicant was discharged with a recommendation that she follow-up with a GP or further imaging if there were any ongoing concerns.(j)An MRI scan report of the right knee dated 25 July 2013 (Attachment 5) identified the Applicant as having a complex meniscal tear, an oedema suggesting a stress injury and intermediate to high grade chondromalacia in the right patella.(k)The Applicant submitted a claim for compensation under the SRC Act dated 30 July 2013 (T7) for ‘dislocated kneecap – Rt, Bakers Cyst – MRI shows osteochrondral lesion medial femoral condyle, complex medial meniscal tear, patella chondromalacia’ sustained in a fall on a train on 28 May 2013.(l)A determination dated 22 August 2013 (T10) denied liability under section 14 of the SRC Act for the following injuries sustained on 28 May 2013:(i)‘dislocation of patella, closed (right)’;(ii)‘ganglion & cyst of synovium, tendon & bursa (right)’;(iii)‘tear of medial cartilage or meniscus of knee (right)’; and(iv)‘chondromalacia of patella (right)’. (m)The reviewable decision dated 2 October 2013 (T17) affirmed the determination dated 22 August 2013.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The agreed issues are as follows:·Whether Ms Prain’s claimed issues arose out of or in the course of her employment for the purposes of section 5A, 6(1)(c), 6(1)(f) or 6(1)(g) of the Act.·Whether Comcare is liable to pay compensation pursuant to section 14 of the Act in respect of one or more of Ms Prain’s claimed injuries.Consideration The Tribunal is satisfied that the facts as agreed by the parties, subject to the comment in paragraph 12 of these reasons, are a fair and accurate representation of the events relating to Ms Prain’s claimed injuries and it so finds. Section 5A of the Act defines an ‘injury’ for the purposes of the Act as ‘an injury that is a physical injury …. arising out of, or in the course of …. employment’. The expression ‘injury arising out of or in the course of employment’ is further defined in section 6 of the Act. Section 6 The relevant provisions of section 6 are as follows:6(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of … employment, an injury shall, for the purposes of this Act be treated as having so arisen if it was sustained: …(c) while the employee was temporarily absent from the employee’s place of work undertaking an activity:(i)Associated with the employee’s employment; or(f) while the employee was at a place for the purpose of:(ii) receiving medical treatment for an injury; or(g) while the employee was travelling between the employee’s place of work and another place for the purpose of:(ii) receiving medical treatment for an injury. It is pertinent to note that, commencing in April 2007, the Act was amended to remove the ‘journey’ provisions. That means that accidents to employees which arose on journeys to and from work are not compensable under the Act. At the time of the accident Ms Prain was not on a journey to her place of work. She was on a journey to seek medical treatment for her accepted condition. In relation to the claim under section 6(g)(ii), the Tribunal finds that on the day of her accident, Ms Prain was not ‘travelling between [her] place of work and another place’. ‘Another place’ is apt to refer to the Royal North Shore Hospital. However, Ms Prain was not ‘travelling between [her] place of work’ and the RNSH. Ms Prain had not worked since April 2011, her residence is in Bowral, and the journey on this occasion was between her hotel in central Sydney to the RNSH in North Sydney. The Act defines ‘place of work’ as including ‘any place at which the employee is required to attend for the purpose of carrying out the duties of … employment’.[1] ‘Place of work’ has been found to be confined to the boundary of the building in which the employee normally works.[2] Ms Prain had ceased working and hence was not travelling from her place of work at ACT Health. Accordingly she does not fall within section 6(g)(ii). [1] Safety, Rehabilitation and Compensation Act 1988 (CT) s 4(1) – definition of ‘place of work’. [2] Re Perera and Comcare (2009) (unreported, AATA 09/0499, 2 July 2009); Re Connor and Australian Postal Corporation (2009) (unreported, AATA 09/0973, 18 December 2009); Re Hughes and Comcare (2010) (unreported, AATA 10/0775, 12 October 2010).