Gyawali and Comcare (Compensation)

Case [2021] AATA 2582

Gyawali and Comcare (Compensation) [2021] AATA 2582 (29 July 2021)

Division:GENERAL DIVISION

File Number(s):     2020/2624          

Re:Ananta Gyawali

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:29 July 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

WORKERS’ COMPENSATION – whether Applicant suffered from a 'disease' or 'injury' within the meaning of the Safety, Rehabilitation and Compensation Act 1988 - non-specific neck and shoulder pain (left) or aggravation – left shoulder impingement syndrome – cervical spondylosis – whether Respondent liable to pay compensation in respect of claimed condition – whether Applicant is a witness of credit – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 37, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 36

Cases
Australian Postal Corporation v Bessey [2001] FCA 266.
Beezley v Repatriation Commission (2015) 150 ALD 11.
Canute v Comcare (2006) 226 CLR 535.
Comcare v Stefaniak [2020] FCA 560.
Commonwealth of Australia v Beattie [1981] 35 ALR 369.
Consolidated Edison Co v National Labour Relations Board [1938] USSC 176.
Dekker and Australian Postal Corporation [2018] AATA 682.
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560.
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468.
Pearson and Prosegur Australia Pty Ltd [2021] AATA 312.
Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64.
Rodriguez v Telstra Corporation Ltd [2002] FCA 30.
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30.
The Nominal Defendant v Cordin [2017] NSWCA 6.
Williamson and Comcare [2019] AATA 4774.
Whitlock and Comcare [2020] AATA 1353.

Zaveczky and Comcare [2020] AATA 4960.

REASONS FOR DECISION

Member W Frost

29 July 2021

INTRODUCTION

  1. The Applicant, Mr Ananta Gyawali, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, affirming its determination denying liability to pay him compensation for ‘non-specific neck and shoulder pain (left) or aggravation thereof’ under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

  2. Mr Gyawali claimed to have suffered his condition while sitting at a desk typing on a keyboard in front of a computer during his employment with Services Australia. Comcare declined liability under the SRC Act because it found that, while Mr Gyawali suffered from an ‘ailment’, it was not satisfied that it was significantly contributed to, to a significant degree, by his employment.

  3. The Tribunal held a hearing of Mr Gyawali’s application using the video facility, Microsoft Teams (MS Teams). The Tribunal in this proceeding has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975[1] (AAT Act) and the parties’ Agreed Bundle of Documents for Hearing,[2] together with the submissions made at the hearing on their behalf. For the reasons that follow, the Tribunal…

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Details
AGLC
Gyawali and Comcare (Compensation) [2021] AATA 2582
Case
[2021] AATA 2582
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Gyawali against a decision by Comcare to reject his claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Mr Gyawali sought compensation for non-specific neck and shoulder pain, left shoulder impingement syndrome, and cervical spondylosis, which he alleged arose from his employment as a Technical Engineering Manager. The dispute centred on whether these conditions constituted an 'injury' or 'disease' as defined by the SRC Act, and whether Comcare was liable to pay compensation.

The primary legal issue before the Tribunal was to determine whether Mr Gyawali suffered an 'injury' or 'disease' within the meaning of the SRC Act. This required the Tribunal to assess the nature of his claimed conditions, the timing of their onset, and their relationship to his work activities. A further issue was the creditworthiness of Mr Gyawali as a witness, given discrepancies in his account of his medical history and the circumstances surrounding the onset of his pain.

The Tribunal found that Mr Gyawali had not suffered an 'injury' or 'disease' under the SRC Act. It considered the medical evidence, including reports from an Ear, Nose and Throat Surgeon, an Osteopath, and a General Practitioner, as well as MRI results of his cervical spine. The Tribunal also examined Mr Gyawali's own statements regarding the onset of his pain, his work history, and his prior medical history, including a motor vehicle accident and other instances of pain and discomfort. The Tribunal concluded that the evidence did not establish that Mr Gyawali's conditions were caused by, or were an aggravation of, an injury or disease arising out of or in the course of his employment.

Consequently, the Tribunal affirmed Comcare's decision under review. Mr Gyawali's claim for compensation under section 14 of the SRC Act was unsuccessful, and Comcare was not liable to pay compensation in respect of the claimed conditions.

Orders

Orders of the court

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Background

Background to the litigation

The issue for the Tribunal to decide in this proceeding is whether Mr Gyawali suffered an ‘injury’ pursuant to the SRC Act. BACKGROUND Mr Gyawali is 41 years old.[3] [3] Exhibit R1, T3, page 7; Exhibit R2, page 68. In 2012, Mr Gyawali commenced employment with the agency now known as Services Australia.[4] He is employed as a Technical Engineering Manager in Information and Communication Technology.[5] [4] Exhibit R1, T3, page 14.[5] Exhibit R2, page 68. In August 2017, Dr Tuan Pham, Ear, Nose and Throat Surgeon, wrote that Mr Gyawali was suffering from left ear pain, which was ‘probably neuralgia’.[6] The pain was said to ‘sometimes radiates [sic] towards the left jaw and underneath the jaw and the ear’. An examination of Mr Gyawali’s neck was said to be ‘normal’. Dr Pham subsequently diagnosed Mr Gyawali as having ‘left tonsil stones’, after he gave a history that ‘left ear pain comes from left throat’.[7][6] Exhibit R1, T4, page 16; T42, page 227.[7] Exhibit R1, T42, page 228. On 25 April 2018, Mr Gyawali attended an Osteopath at the Canberra Body Clinic with ‘pain in his left shoulder and neck’.[8][8] Exhibit R1, T7, page 20. On 18 May 2018, an MRI of Mr Gyawali’s cervical spine showed ‘early uncovertebral and facet joint arthropathy resulting in multilevel, bilateral neuroforaminal exit narrowing though no appreciable nerve root impingement’.[9] [9] Exhibit R1, T8, pages 21-22. In early August 2019, Mr Gyawali moved to another team at Services Australia, but did not have a sit/stand desk.[10] In mid-August 2019, Mr Gyawali ‘started noticing symptoms’ and requested a workplace adjustment in the form of a powered sit/stand desk.[11][10] Exhibit R1, T27, page 122. [11] Exhibit R1, T9, pages 23-28; T27, page 122; Exhibit R2, page 72. On 18 September 2019, Mr Gyawali made a report of an incident said to have occurred at work on 6 April 2018.[12] Most relevantly, the following responses were provided by Mr Gyawali:What Incident or Injury did you sustain? [Nature of Incident or Injury]:Felt sharp pain on my neck and left shoulders radiating to my arms & earPart of body affected:Left shoulder, neck, left ear and left arms and left hand including fingersDescribe how you sustained the Incident or Injury [Mechanism]:While working normally. Due to prolonged sitting – overwork my left hand, neck, shoulders and associated body parts.Describe object, substance or circumstance involved [Agency]:While working normally in a desk sitting on a chair using the mouse and keyboards. [errors in original] [12] Exhibit R1, T11, page 32. On 25 September 2019, Mr Gyawali attended Dr James Ayres, General Practitioner. The reason for the visit was recorded as ‘Chronic pain’.[13] Mr Gyawali was a new patient of Dr Ayres, who recorded an 18 month history of pain in the ‘left shoulder, neck, jaw and ear region’. The stressors discussed were ‘Overwhelmed at home. Feels workplace is unsupportive. Over-worked, under-appreciated’. Dr Ayres discussed ‘biopsychosocial model of pain’ and working on a routine for ‘sleep, meals and relaxation’, including ‘time away from work’ and also explained ‘the difficult nature of diagnosing chronic neck pain.’ Dr Ayres certified Mr Gyawali as unfit for work from that date until 25 October 2019.[14] [13] Exhibit R1, T44, page 230. [14] Exhibit R1, T13, page 36.

Evidence

Evidence Before The Court

Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also defines ‘aggravation’ to include ‘acceleration or recurrence’. EVIDENCEMr Gyawali The Tribunal has considered the written statement made by Mr Gyawali in this proceeding dated 1 June 2021, which relevantly noted that:[45] [45] Exhibit R2, pages 68-82. In the lead up to 6 April 2018, I was working long hours in my employment as there were very high demands of jobs/services across multiple agencies…My working hours were often longer than 10 hours and on-calls requiring after hours and nightly support. I had to sit in a position for a prolonged period of time to support these activities.…On 6 April 2018 at around 4pm, I noticed a sharp pain in the left side of my neck and left arm radiating to my arm and ear. I was at my desk working on my computer using the mouse. I continued on working as there was no option for me to stop as I had to complete the tasks on hand. I returned on [sic] at 6pm that day.I did not report the pain to anyone on the day as it was Friday and my manager had already gone for the day. Initially I thought had sprained my neck and shoulder, which I thought would go away after some rests, and so did not report it to my manager.Over the weekend, the pain settled. I had never experienced that kind of pain prior 6 April 2018 and this was new to me. Over the weekend, I treated it as a sprain, and used over the counter creams and pain killers.…On Monday, 23 April 2018, I left work early to find a doctor’s appointment to get diagnosed for my neck/shoulder pain. I tried to book an appointment with my GP but he was not available immediately. I was able to book the Canberra Body Clinic to see Mr Matt Monus, an osteopath, on Wednesday, 25 April 2018, for my condition.…the Respondent noted at paragraph 8 of their Statement of Facts, Issues and Contentions:On 10 November 2015, the applicant attended Tuggeranong Square Medical Practice and reported being in a motor vehicle accident, which resulted in a jarring movement of his neck. He was not hit on the head, but developed pain over his upper thoracic region on the left side (summonsed documents, Tuggeranong Square Medical Practice).My response to that paragraph is that in March 2011, I had a motor vehicle accident which resulted in me breaking my rib and a thoracic injury. However, this injury got better in about 6 to 8 weeks. I had mentioned this to my GP as part of a general medical history question in 2015, and I confirm that I have fully recovered from this MVA injury on 9 March 2011 prior to my injury at work on 6 April 2018. I did not suffer any neck pain radiating into the left shoulder. Mr Gyawali gave evidence at the hearing of the proceeding by video using MS Teams. Counsel for Comcare asked Mr Gyawali whether, in August 2014, he attended his general practitioner due to being unwell for one month with pain over his ‘right upper back’.[46] He could not recall this attendance until taken to the contemporaneous medical records. Mr Gyawali was further asked whether on 14 November 2014 he had ‘tingling pain down right leg’ for five months.[47] He confirmed this was so and that he did not then have back pain. He accepted that he had an examination and was referred for a CT scan of his lumbar spine.[48] Mr Gyawali could not recall attending this scan and was taken to the subsequent report, which noted a ‘pain tingling sensation down the right leg’.[49] He could not recall receiving this report, but said his doctor ‘must have’ discussed the findings with him. [46] Exhibit R2, page 244. [47] ibid.[48] ibid., page 245.[49] ibid., page 267.

Decision

Reasons for decision

On all of the available evidence, the Tribunal finds that Mr Gyawali did not suffer an ‘injury’ or ‘disease’ under the SRC Act. For these reasons, Mr Gyawali’s claim for compensation under the SRC Act is unsuccessful. Accordingly, Comcare is not liable to pay compensation to Mr Gyawali pursuant to section 14 of the SRC Act. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

Ratio Decidendi

Legal Principle Established

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