Gait and Comcare (Compensation)

Case [2018] AATA 4282

Gait and Comcare (Compensation) [2018] AATA 4282 (16 November 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4672

Re:Beverly Gait

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk
Dr Ion Alexander

Date:16 November 2018

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member Linda Kirk

CATCHWORDS

COMPENSATION – workers compensation – neck injury – whether Applicant suffered an injury or disease – whether claimed injury arose out of, or in the course of, employment – whether employment contributed to a significant degree – expert medical evidence considered  –  pre-existing history of neck pain and degenerative disease of the cervical spine – decision under review affirmed

LEGISLATION

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation, Compensation and Other Legislation Amendment 2007 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14,

CASES

Australian Postal Corporation v Burch (1998) 156 ALR 483

Comcare v Mooi [1996] FCA 1587; (1996) 69 FCR 439
Comcare v Power [2015] FCA 1502; (2015) 238 FCR 187; 149 ALD 286; 68 AAR 228
Comcare v Reardon [2015] FCA 1166; 148 ALD 356
Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2011] AATA 886
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Prain v Comcare [2016] AATA 459
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286; 174 ALR 626
Ogden Industries Pty Limited v Lucas [1967] HCA 30; (1967) 116 CLR 537
Reardon and Comcare [2015] AATA 360

Su v Comcare [2011] AATA 934

REASONS FOR DECISION

Senior Member Linda Kirk
Dr Ion Alexander

16 November 2018

INTRODUCTION AND BACKGROUND

  1. Ms Beverley Gait (‘the Applicant’) was born in June 1963 and commenced employment with Australian Border Force (ABF) in May 2011 as an Australian Border Force Officer.

  2. By application dated 1 March 2016[1] the Applicant lodged a claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of a neck injury she claimed to have suffered at work on 27 May 2015 (‘the Claimed Injury’).

    [1] T Documents, T9 at pages 37-42.

  3. In a determination dated 18 May 2016,[2] the Respondent denied liability under s 14 of the SRC Act in respect of the Claimed Injury on the basis that the Applicant had not suffered an injury which was significantly contributed to by her employment.

    [2] T Documents, T21 at pages 85-88.

  4. On 1 July 2016 a delegate of the Respondent affirmed the determination[3] (‘the Reviewable Decision’).

    [3] T Documents, T25 at pages 94-100.

  5. On 31 August 2016 the Applicant applied for a review of the Reviewable Decision by this Tribunal.[4]

    [4] T Documents, T2 at pages 4-5, Application for Review of Decision dated 31 August 2016.

  6. The matter was heard by the Tribunal in Sydney on 30 and 31 August 2018. The following witnesses gave oral evidence at the hearing:

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Details
AGLC
Gait and Comcare (Compensation) [2018] AATA 4282
Case
[2018] AATA 4282
Decision Date

CaseChat Overview and Summary

This matter concerned an application for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) by an employee of the Australian Border Force (ABF) against Comcare. The applicant claimed to have suffered a neck injury on 27 May 2015 while performing duties at the Container Examination Facility at Port Botany. The applicant’s role involved repetitive tasks of opening and examining boxes of aloe vera juice, which required sitting on boxes or kneeling on a concrete floor for approximately seven hours. She reported waking that night with considerable pain in her neck and restricted movement.

The court was required to determine three key issues. Firstly, whether the applicant suffered an "injury (other than a disease)" that arose out of, or in the course of, her employment. Secondly, whether the applicant suffered an aggravation of a "disease" to which her employment contributed to a significant degree. Thirdly, if either of these conditions were met, whether the injury or aggravation resulted in incapacity for work or impairment for the purposes of the SRC Act.

The court considered the distinction between an "injury simpliciter" and a "disease" under the SRC Act. An injury simpliciter requires a causal or temporal connection with employment, whereas a disease requires employment to have contributed to a significant degree. The court noted that whether a condition constitutes an injury or a disease is determined on a case-by-case basis, requiring precise evidence concerning the nature of the physiological change. The court found that the applicant did not suffer an injury within the meaning of section 14 of the SRC Act.

Consequently, the court ordered that the reviewable decision be affirmed, and Comcare was not liable to pay compensation to the applicant for the claimed injury.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issues for determination are whether the Respondent is liable to pay compensation to the Applicant for the Claimed Injury under s 14 of the SRC Act, and specifically:(1)Did the Applicant suffer an “injury (other than a disease)” which arose out of, or in the course of her employment with ABF as defined in s 5A(1)(b) of the SRC Act?(2)Did the Applicant suffer an aggravation of a “disease”, as defined in s 5A(1)(a) and s 5B(1)(b) of the SRC Act, to which her employment with ABF contributed, to a significant degree?(3)If so, did the injury or aggravation of the disease result in incapacity for work or impairment for the purposes of s 14(1) of the SRC Act?EVIDENCE BEFORE THE TRIBUNALApplicant’s Employment with Australian Border Force The Applicant commenced employment with ABF on 12 May 2011. She initially did some work as a trainee and then worked for three and a half years as a customs officer at Sydney Kingsford Smith Airport. This role involved a range of duties including marshalling, assessment duties and baggage examination.[5][5] Transcript at page 22. In January 2015 the Applicant moved to the ABF mobile deployments team.[6] Prior to the Claimed Injury she worked approximately 40 hours per week. She worked shifts of nine or nine and a half hours on a seven day rotation. She was nominally based at Mascot but was required to be deployed to various other sites, including the Container Examination Facility (CEF) at Port Botany.[7] [6] Exhibit A3, Transcript at page 15. [7] Transcript at page 21. The Applicant’s duties required her to walk, stand, sit, bend, lift, push and pull. The heaviest item she was required to lift was less than 20 kilograms but she was often required to handle high volumes at times.[8][8] Transcript at page 25. The Applicant’s duties at the CEF included testing of various goods and inspection of items that ranged in size, and involved operation of a pallet X-ray and mobile X-ray machines.[9] [9] Transcript at page 23.Claimed Injury - 27 May 2015 On 27 May 2015 the Applicant was deployed at the CEF at Port Botany on a 1pm to 9pm shift. Her team had a full container of boxes that each contained 12 bottles of aloe vera juice. They were tasked to open each box, take the lid off the bottle, examine underneath the lid, replace the lid and put it back in the box. They were looking for a marking for contamination or infusion within the liquid itself. The team undertook this task for the full shift of approximately seven hours. They were either sitting on the boxes and moving them as they opened them or kneeling on the concrete floor.[10] The work was rapid and repetitive but not particularly heavy.[11][10] Transcript at page 18.[11] Transcript at page 25. At the end of her shift the Applicant went home and went to bed ‘feeling sore and stiff, but otherwise okay.’[12] She woke up during the night ‘with considerable pain to the right side of [her] neck’. She had very little sleep.[13] The next day her neck was ‘very, very sore around the right-hand side … where the flexing point is.’[14] She had restricted movement to the left side of her neck so she ‘had problems turning to the left and looking to the left and moving [her] neck to the left.’[15][12] Transcript at page 18.[13] Transcript at page 18.[14] Transcript at page 18.[15] Transcript at page 28.

Decision

Reasons for decision

The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an injury within the meaning of s 14 of the SRC Act. The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.DECISION The Reviewable Decision is affirmed

Ratio Decidendi

Legal Principle Established

The Respondent argued that the pain and restrictions on movement the Applicant claims to experience are not materially different from those noted by Dr Goldberg in January 2012, more than three years before the incident on 27 May 2015.[110][110] Transcript at page 82.CONSIDERATION The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. Issue 1 - Was the Claimed Injury ‘an injury (other than a disease)’ as defined under s 5A(1)(b) of the SRC Act? The first issue for the Tribunal’s consideration is whether the condition for which the Applicant seeks compensation can be considered a “disease” or an “injury other than a disease” for the purposes of the SRC Act.Distinction between an ‘injury simpliciter’ and a ‘disease’ The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an “injury simpliciter” – see Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369,[111] the injury must arise out of, or in the course of, the employment: s 5A(1)(b) of the SRC Act. That is, “… the physical or mental injury has to have a causal or temporal connection with the employee’s employment.”[112] [111] Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369French CJ, Kiefel, Nettle and Gordon JJ at [378].[112] Ibid, French CJ, Kiefel, Nettle and Gordon JJ at [379]. An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment.[113] The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at [486] and Prain v Comcare [2016] AATA 459 at [7]-[8]. [113] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1). Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626 at [632]: “Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case”. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to “… precise evidence … concerning the nature and incidents of the physiological change…”[114] [114] Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626 per Gleeson CJ and Kirby J at [637].What is an injury simplicter? In Australian Postal Corporation v Burch (1998) 156 ALR 483 at [488], the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was “…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change”. Similarly, in Kennedy Cleaning Gleeson CJ and Kirby J stated that “… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…” at [637].