Fisher and Comcare (Compensation) [2023] AATA 1883 (29 June 2023)
Division:GENERAL DIVISION
File Number(s): 2020/1291, 2021/0283
Re:Francesca Fisher
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:29 June 2023
Place:Hobart
The decisions under review are affirmed
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A G Melick AO SC, Deputy President
Catchwords
Workers’ Compensation (Cth) — Injury — Disease — Whether injury arose out of or during the course of employment — Whether injury arising out of or during the course of employment aggravated an underlying condition — inconsistent evidence — pre-existing condition — decisions under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Adams and Comcare [2022] AATA 3404
Commonwealth and Beattie [1981] FCA 88
Ellison v Comcare [2022] FCA 335Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 624
May v Military Rehabilitation and Compensation Commission (2015) 322 ALR 330
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Miller and Comcare [2012] AATA 715
Tippett v Australian Postal Corporation (1998) 27 AAR 40Wuth and Comcare [2022] FCAFC 42
REASONS FOR DECISION
A G Melick AO SC, Deputy President
29 June 2023
INTRODUCTION A G MELICK AO SC, DEPUTY PRESIDENT
The Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of two decisions. Both applications were heard together on 9, 10 and 27 September 2021.
The first reviewable decision dated 15 November 2017 is a Non-Economic Loss determination. (NEL Application 2020/1291)
That decision affirmed a primary determination dated 15 July 2016 which determined that the Applicant suffered a total permanent impairment of 28% for “aggravation of spinal stenosis cervical region”, but determined the Applicant was not entitled to any compensation under s 27 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in respect of “non-economic loss”.
The delegated Review Officer found that the symptoms experienced by the Applicant related to a pre-existing non-compensable condition.
The second reviewable decision is a No Present Liability determination dated 10 December 2020. (NPL Application 2021/0283)
That decision affirmed the primary determination dated 2 November 2020 which determined that the Applicant had no present entitlement to compensation under section 16, “for incapacity benefits under sections 19 (medical expenses) and 20 (incapacity when in receipt of a superannuation pension) and household services under section 29” of the SRC Act, in respect to the accepted conditions of “aggravation of spinal stenosis in cervical region” and “aggravation of generalised anxiety disorder”.
The designated Review Officer was satisfied that the Applicant did not presently suffer from the effects of either of her accepted conditions and was therefore not entitled to medical expenses, incapacity payments and household services pursuant to the above-mentioned sections of the SRC Act.
The facts and evidence in this case were voluminous and complicated. The Applicant was self-represented and extremely thorough which caused, at times, some potentially confusing duplication of materials.
Before dealing with the medical evidence,…
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- AGLC
- Fisher and Comcare (Compensation) [2023] AATA 1883
- Case
- [2023] AATA 1883
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether Mrs Fisher's cervical spine condition constituted an "injury" for the purposes of the relevant legislation, and if so, whether that injury arose out of or during the course of her employment. This involved determining whether a specific incident, referred to as "lift incident two," or her general duties at work had caused or aggravated an underlying degenerative condition in her cervical spine.
The Tribunal considered conflicting medical evidence. Dr Bruce Taylor, a neurologist, diagnosed an acute C7 radiculopathy following the incident in January 2001, noting that while degeneration of the cervical spine was a normal phenomenon for her age, the injury had not left her with significant disability but rather a predisposition to worsening symptoms with overuse. Dr Bakker, Mrs Fisher's general practitioner, recorded significant pain prior to "lift incident two" and noted a deterioration in her neck pain over time, with clinical entries indicating persistent pain radiating down her arms and increasing neck pain. Dr Bakker's letters to Comcare stated that Mrs Fisher sustained an injury at work due to a lift malfunction, resulting in daily cervical spine pain with radiation into both arms, and that her duties contributed to forward head flexion and associated pain. The Tribunal affirmed the decisions under review.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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