Farrell and Comcare

Case [2015] AATA 268

[2015] AATA 268

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2013/4053, 2014/1068, 2014/1457

Donna Farrell

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Dr James Popple, Senior Member
Date 28 April 2015
Place Canberra

Comcare’s decisions on 2 August 2013, 27 February 2014 and 16 March 2014 are affirmed.

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

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — whether Comcare liable for permanent impairment and non-economic loss — application of tables in approved Guide — preclusions in Table 9.14 — whether table available under clinical judgment — whole person impairment assessed at less than 10% — decision affirmed.

COMPENSATION — Commonwealth employees — whether Comcare liable for cervicobrachial syndrome — whether related to employment — diagnosis of non-specific neck pain — decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 14, 24, 27, 28

CASES

Dawson and Comcare (2013) 138 ALD 430

SECONDARY MATERIALS

Gunnar B. J. Andersson and Linda Cocchiarella (editors), Guides to the Evaluation of Permanent Impairment (AMA Press, fifth edition, 2001)

Comcare, Guide to the Assessment of the Degree of Permanent Impairment (edition 2.1, 2011)

REASONS FOR DECISION

James Popple, Senior Member

28 April 2015

Summary

  1. I affirm Comcare’s decisions to deny the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On the proper application of tables in the approved Guide, Comcare is not liable to pay Ms Farrell compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act. And Comcare is not liable, under s 14 of the SRC Act, to pay Ms Farrell compensation in respect of her neck pain because there is insufficient evidence to find that her neck pain arose out of, or in the course of, her employment.

    Background

  2. Ms Donna Farrell worked for the Australian Bureau of Statistics from 1986.  From 2006, her duties required her to undertake repetitive key strokes and mouse work.  She developed pain in her index and middle finger extending to her right wrist and forearm.  She saw her general practitioner on 6 August 2008.  He diagnosed her pain as being due to “excessive mouse work while testing a new system”.

  3. Ms Farrell made three separate applications to this Tribunal, which were heard together.  The background to each application is explained below.

    Application 2013/4053

  4. On 12 September 2008, Comcare accepted liability for Ms Farrell’s claim of tenosynovitis hand and wrist (right), with a date of injury of 6 August 2008.  On 29 November 2011, Comcare accepted liability for a claim of lateral epicondylitis (left) and synovitis and tenosynovitis (left), with the same date of injury.

  5. On 18 April 2013, Ms Farrell made a claim under ss 24 and 27 of the SRC Act for compensation for permanent impairment and non-economic loss.

  6. On 28 May 2013, Comcare disallowed her claim.  Comcare rejected liability for permanent impairment in relation to two conditions for which it had not accepted liability: carpal tunnel syndrome (bilateral) and lateral epicondylitis (right).  It also rejected liability for permanent impairment in relation…

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AGLC
Farrell and Comcare [2015] AATA 268
Case
[2015] AATA 268
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was called upon to determine the liability of Comcare in relation to the compensation claims of Ms Farrell, an employee of the Commonwealth. Ms Farrell sought compensation for various conditions, including permanent impairment and non-economic loss related to several musculoskeletal conditions, and bilateral cervicobrachial syndrome. Comcare had previously rejected some of these claims, leading Ms Farrell to apply for a review by the Administrative Appeals Tribunal (AAT). The AAT affirmed Comcare's decisions, prompting Ms Farrell to seek further review by the Federal Court.

The primary legal issues before the court were whether Comcare was liable to compensate Ms Farrell for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act), and whether Comcare was liable to compensate her for bilateral cervicobrachial syndrome under section 14 of the SRC Act. This involved interpreting the approved Guide to the Assessment of the Degree of Permanent Impairment and determining the applicability of specific tables within it to Ms Farrell's conditions. Additionally, the court needed to decide if the diagnosis of non-specific neck pain related to her employment.

In its decision, the court upheld the AAT’s findings. It held that Comcare was not liable for compensation for permanent impairment and non-economic loss in relation to several conditions because the degree of impairment, as assessed using the relevant tables in the approved Guide, was less than 10%. The court noted that even under clinical judgment, the tables could not be bypassed when the assessed impairment was below the threshold. Regarding the bilateral cervicobrachial syndrome, the court found that there was insufficient evidence to establish a causal link between the syndrome and Ms Farrell's employment.

The court's reasoning was based on a meticulous examination of the approved Guide and the application of its provisions to the specific facts of Ms Farrell's case. It concluded that Comcare's decisions were legally sound and affirmed the AAT's rejection of Ms Farrell's claims. As a result, the Federal Court dismissed Ms Farrell's applications for review.

Orders

Orders of the court

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Background

Background to the litigation

On 29 January 2014, Ms Farrell requested a reconsideration of that determination. On 16 March 2014, Comcare affirmed its determination.Summary of background Comcare has accepted liability, under s 14 of the SRC Act, for:·tenosynovitis hand and wrist (right);·lateral epicondylitis (bilateral)—commonly known as “tennis elbow”;·synovitis and tenosynovitis (left); and·medial epicondylitis (right)—commonly known as “golfer’s elbow”.[1][1] On 28 March 2014, Comcare accepted liability for bilateral chronic pain syndrome in the arms. At the hearing, the parties agreed that the question of liability under ss 24 and 27 of the SRC Act for this condition is not before the Tribunal. On 16 August 2013 (Application 2013/4053), 28 February 2014 (Application 2014/1068) and 21 March 2014 (Application 2014/1457), Ms Farrell applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of those parts of Comcare’s decisions which rejected liability for compensation.Decisions under review The decisions under review are Comcare’s reconsidered decisions:·on 2 August 2013, rejecting liability for compensation for permanent impairment and non-economic loss in relation to lateral epicondylitis (right); tenosynovitis hand and wrist (right); lateral epicondylitis (left); and synovitis and tenosynovitis (left);·on 27 February 2014, rejecting liability for compensation for cervicobrachial syndrome (bilateral); and·on 16 March 2014, rejecting liability for compensation for permanent impairment and non-economic loss for medial epicondylitis (right) and lateral epicondylitis (right).Issues The issues in these reviews are:·whether Comcare is liable to pay Ms Farrell compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act (which raises the question of the proper application of tables in the approved Guide); and·whether Comcare is liable, under s 14 of the SRC Act, to pay Ms Farrell compensation for bilateral cervicobrachial syndrome.Liability for compensation for permanent impairment and non-economic loss (ss 24 and 27 of the SRC Act) Section 24 of the SRC Act provides that, where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.[2] Section 27 provides that, where compensation is payable under section 24, Comcare is liable to pay additional compensation for non-economic loss in accordance with s 27. Section 24 also provides that Comcare must determine the degree of an employee’s permanent impairment under the provisions of the approved Guide[3] and express that degree as a percentage.[4] If that degree of impairment is less than 10%, Comcare is not liable to pay compensation under s 24.[5] The approved Guide is a legislative instrument, made by the Minister responsible for the SRC Act, and entitled Guide to the Assessment of the Degree of Permanent Impairment.[6] The approved Guide is binding on Comcare and on this Tribunal.[7] The current version of the approved Guide is edition 2.1. It applies to claims received on and from 1 December 2011, so it applies to Ms Farrell’s claims.[2] SRC Act, s 24(1).[3] SRC Act, s 24(5).[4] SRC Act, s 24(6).[5] Compensation is not payable under s 24 if Comcare determines that the degree of permanent impairment (other than a hearing loss) is less than 10% (s 24(7)).[6] SRC Act, s 4 (definition of “approved Guide”) and s 28.[7] SRC Act, s 28(4).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 16 August 2013 (Application 2013/4053), 28 February 2014 (Application 2014/1068) and 21 March 2014 (Application 2014/1457), Ms Farrell applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of those parts of Comcare’s decisions which rejected liability for compensation.Decisions under review The decisions under review are Comcare’s reconsidered decisions:·on 2 August 2013, rejecting liability for compensation for permanent impairment and non-economic loss in relation to lateral epicondylitis (right); tenosynovitis hand and wrist (right); lateral epicondylitis (left); and synovitis and tenosynovitis (left);·on 27 February 2014, rejecting liability for compensation for cervicobrachial syndrome (bilateral); and·on 16 March 2014, rejecting liability for compensation for permanent impairment and non-economic loss for medial epicondylitis (right) and lateral epicondylitis (right).Issues The issues in these reviews are:·whether Comcare is liable to pay Ms Farrell compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act (which raises the question of the proper application of tables in the approved Guide); and·whether Comcare is liable, under s 14 of the SRC Act, to pay Ms Farrell compensation for bilateral cervicobrachial syndrome.Liability for compensation for permanent impairment and non-economic loss (ss 24 and 27 of the SRC Act) Section 24 of the SRC Act provides that, where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.[2] Section 27 provides that, where compensation is payable under section 24, Comcare is liable to pay additional compensation for non-economic loss in accordance with s 27. Section 24 also provides that Comcare must determine the degree of an employee’s permanent impairment under the provisions of the approved Guide[3] and express that degree as a percentage.[4] If that degree of impairment is less than 10%, Comcare is not liable to pay compensation under s 24.[5] The approved Guide is a legislative instrument, made by the Minister responsible for the SRC Act, and entitled Guide to the Assessment of the Degree of Permanent Impairment.[6] The approved Guide is binding on Comcare and on this Tribunal.[7] The current version of the approved Guide is edition 2.1. It applies to claims received on and from 1 December 2011, so it applies to Ms Farrell’s claims.[2] SRC Act, s 24(1).[3] SRC Act, s 24(5).[4] SRC Act, s 24(6).[5] Compensation is not payable under s 24 if Comcare determines that the degree of permanent impairment (other than a hearing loss) is less than 10% (s 24(7)).[6] SRC Act, s 4 (definition of “approved Guide”) and s 28.[7] SRC Act, s 28(4). Chapter 9 of the approved Guide deals with the musculoskeletal system. Part II of chapter 9 deals with “The upper extremities: hands and fingers, wrists, elbows and shoulders”. Tables within Part II include Table 9.8 (hands and fingers) and Table 9.9 (wrists). Comcare used those tables to assess the degree of Ms Farrell’s impairment. Ms Farrell concedes that, if those tables are used, her claims fail as her degree of impairment assessed under those tables is less than 10%.

Ratio Decidendi

Legal Principle Established

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