Frank Fletcher and Comcare

Case [2015] AATA 430

[2015] AATA 430 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

 2013/6711

Re

Frank Fletcher 

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries  
Date 18 June 2015    
Place Canberra

The reviewable decision dated 19 November 2013 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for aggravation of his bilateral forearm condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

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

Gary Humphries
Deputy President

Catchwords

COMPENSATION – Commonwealth employees – bilateral forearm condition – whether employment contributed to a significant degree – whether aggravation – whether applicant has a compensable injury as defined by the Safety, Rehabilitation and Compensation Act 1988 – decision set aside and substituted.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Colombo and Australian Postal Corporation [2015] AATA 10

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Commonwealth v Beattie (1981) 35 ALR 369

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Huynh and Australian Postal Corporation [2015] AATA 235

Mellor v Australian Postal Corporation [2009] FCA 504

Mellor and Australian Postal Corporation [2010] AATA 502

Popovski v Ericsson Australia Pty Ltd [1998] VSC 61

Eckersley and Minister for Capital Territory (1979) 2 ALD 303
Holbrook and Australian Postal Commission (1983) 5 ALN N46
Tippett v Australian Postal Corporation (1998) 27 AAR 40

Wiegand v Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

Gary Humphries, Deputy President

18 June 2015

Decision under review

  1. This decision under review is a decision of Comcare dated 19 November 2013 (affirming a determination dated 28 October 2013) that Comcare was not liable to pay compensation to Mr Fletcher under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to a condition then described as “unspecified injury to elbow, wrist, forearm (forearm only) (bilateral)” and “epicondylitis bilateral medial”.

    Background

  2. Frank Fletcher is a fit, active man with a long history of employment in the public service.  He has however developed a painful condition affecting his forearms and hands.  Doctors described his condition as a combination of “tennis elbow” and “golfer’s elbow”.

  3. I adopt the facts of this matter as set out in the primary determination. Mr Fletcher submitted a claim for workers’ compensation dated 21 August 2013 for ‘soft tissue trauma to left and right forearms and epicondylitis bilateral medial’. It was contended that this condition arose following an exercise program involving weight lifting at a gymnasium. Mr Fletcher first sought medical treatment from Dr Meredith Pfohl on 13 May 2013 whilst employed as an Assistant Director at the Department of Climate Change and Energy Efficiency.

  4. On 28 October 2013, Comcare denied liability for the claimed condition as the delegate was not satisfied that Mr Fletcher’s employment significantly contributed. On 1 November 2013, Mr Fletcher requested a reconsideration of that determination. Mr Fletcher also indicated that his claim was for an aggravation injury, sustained on his return to work on 29 July 2013. On 19 November…

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AGLC
Frank Fletcher and Comcare [2015] AATA 430
Case
[2015] AATA 430
Decision Date

CaseChat Overview and Summary

In the case of Frank Fletcher and Comcare, the applicant, Mr Frank Fletcher, sought compensation for a bilateral forearm condition which he alleged arose from his employment with the Commonwealth. The decision of Comcare, dated 19 November 2013, was set aside and substituted by the Administrative Appeals Tribunal. The Tribunal was required to determine whether Mr Fletcher’s employment contributed, to a significant degree, to his bilateral forearm condition and whether it also contributed to an aggravation of that condition. The decision of Comcare was based on the determination that Mr Fletcher’s employment did not significantly contribute to his condition, and thus Comcare was not liable for compensation. Mr Fletcher appealed this decision, arguing that his employment did indeed contribute to his condition, both in its initial manifestation and in its aggravation.

The Tribunal considered the applicable provisions of the Safety, Rehabilitation and Compensation Act 1988, particularly sections 5A and 5B, which define "injury" and "disease" and outline the criteria for determining whether an ailment or aggravation was contributed to by employment. The Tribunal examined the evidence regarding the nature of Mr Fletcher’s employment, the specific tasks involved, the duration of his employment, any predisposition he may have had to the condition, and other activities that could have contributed to his ailment. It also took into account the expert medical evidence presented, which detailed the progression and characteristics of Mr Fletcher’s condition.

The Tribunal found that Mr Fletcher’s employment did significantly contribute to his bilateral forearm condition. It concluded that the condition arose from the repetitive strain associated with his employment duties and was exacerbated by specific work-related activities. Therefore, Mr Fletcher was entitled to compensation under section 14 of the Act. The Tribunal set aside the decision of Comcare and substituted it with a determination that Comcare was liable for compensation. The Tribunal's decision recognised the significant contribution of Mr Fletcher’s employment to his condition, both in its development and its aggravation, thereby entitling him to compensation for any incapacity or impairment resulting from it.

Orders

Orders of the court

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Background

Background to the litigation

This decision under review is a decision of Comcare dated 19 November 2013 (affirming a determination dated 28 October 2013) that Comcare was not liable to pay compensation to Mr Fletcher under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in relation to a condition then described as “unspecified injury to elbow, wrist, forearm (forearm only) (bilateral)” and “epicondylitis bilateral medial”.Background Frank Fletcher is a fit, active man with a long history of employment in the public service. He has however developed a painful condition affecting his forearms and hands. Doctors described his condition as a combination of “tennis elbow” and “golfer’s elbow”. I adopt the facts of this matter as set out in the primary determination. Mr Fletcher submitted a claim for workers’ compensation dated 21 August 2013 for ‘soft tissue trauma to left and right forearms and epicondylitis bilateral medial’. It was contended that this condition arose following an exercise program involving weight lifting at a gymnasium. Mr Fletcher first sought medical treatment from Dr Meredith Pfohl on 13 May 2013 whilst employed as an Assistant Director at the Department of Climate Change and Energy Efficiency. On 28 October 2013, Comcare denied liability for the claimed condition as the delegate was not satisfied that Mr Fletcher’s employment significantly contributed. On 1 November 2013, Mr Fletcher requested a reconsideration of that determination. Mr Fletcher also indicated that his claim was for an aggravation injury, sustained on his return to work on 29 July 2013. On 19 November 2013, Comcare affirmed the determination of 28 October 2013 and added that Comcare is not liable for the claimed aggravation injury. In December 2013, Mr Fletcher lodged an application in the Administrative Appeals Tribunal to review this decision.The issues The parties before the Tribunal agreed that there were two issues on which these proceedings turn:1.Did Mr Fletcher’s Commonwealth employment contribute, to a significant degree, to his bilateral forearm condition?2.Did Mr Fletcher’s Commonwealth employment contribute, to a significant degree, to an aggravation of his bilateral forearm condition?If the answer to either question is yes, Mr Fletcher is prima facie entitled, under s 14 of the Act, to compensation for any incapacity for work or impairment resulting from the condition.Did Mr Fletcher’s employment contribute to his condition?The applicable law The relevant provisions of the Act are as follows:5A Definition of injury(1) In this Act:injury means:(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; or...5B Definition of disease(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.4 Interpretation(1) In this Act, unless the contrary intention appears:...aggravation includes acceleration or recurrence.ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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