Harding and Comcare (Compensation) - [2019] AATA 4391

Harding and Comcare (Compensation) [2019] AATA 4391 (29 October 2019)
Division:GENERAL DIVISION
File Number: 2017/7292
Re:Christopher Harding
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:29 October 2019
Place:Perth

The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), for the condition of subacromial bursitis of the right shoulder, as diagnosed by Dr Slinger.
The Tribunal awards the Applicant costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
..................................[sgd]......................................
Senior Member Dr M Evans
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – s 14 of Safety, Rehabilitation and Compensation Act 1988 (Cth) – right shoulder condition – conflicting expert medical evidence regarding correct diagnosis – preferred medical evidence – whether an “ailment” – whether a “disease” or an “injury (other than a disease)” – injury simpliciter – relationship between Applicant’s employment and injury – whether injury sustained moving a desk attachment at work – whether injury arising out of, or in the course of the Applicant’s employment – decision set aside and substituted – costs awarded
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 5A, 5A(1)(a), 5A(1)(b), 5B(1), 14, 14(1), 67(8)
CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare and Mooi (1996) 69 FCR 439
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Vo and Comcare [2005] AATA 773
Re Winsall and Comcare (2003) 72 ALD 696
SECONDARY MATERIALS
Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (11^th ed, Federation Press 2018).
Administrative Appeals Tribunal, Guideline: Persons Giving Expert and Opinion Evidence, 30 June 2015.
REASONS FOR DECISION
Senior Member Dr M Evans
29 October 2019
SUMMARY

The Applicant made a Workers’ Compensation claim for a shoulder injury. He claimed that the injury occurred as a result of him lifting a desk attachment when working at the Department of Human Services (the Department). The Respondent, through its insurer, Allianz Australia Insurance Ltd (Allianz), made a decision to deny liability to pay the Applicant compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The Applicant is seeking review of that decision in the Administrative Appeals Tribunal (the Tribunal).
There are numerous medical records before the Tribunal. Some contain inconsistent spelling, for example, “tendonosis” and “tendinosis”. The Tribunal has retained the same spelling as the original sources.
THE APPLICATION
On 16 July 2017, the Applicant submitted a Workers’ Compensation claim for a “shoulder/back injury” affecting “predominantly the right shoulder” (T4, page 8-14).

He stated that the injury occurred when “moving a desk attachment at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harding and Comcare (Compensation)

Details

AGLC: Harding and Comcare (Compensation) [2019] AATA 4391
Case: [2019] AATA 4391
Decision Date: 29 October 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant for compensation from Comcare for a right shoulder condition, pursuant to section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether Comcare was liable to pay compensation, which in turn depended on the correct diagnosis of the Applicant's condition and whether it constituted an "injury" or an "ailment" or an aggravation of an ailment that qualified as a "disease" under the Act. The case was heard by M Evans SM.

The primary legal issues before the Tribunal were to determine the appropriate diagnosis of the Applicant's right shoulder condition and to ascertain whether this condition qualified as an "injury (other than a disease)" under section 5A(1)(b) of the *SRC Act*, or an "ailment" as defined by section 4 of the Act, or an aggravation of an ailment that satisfied the definition of a "disease" under section 5B(1) of the Act. The resolution of these issues was heavily reliant on the interpretation of conflicting expert medical evidence presented by the Applicant and the Respondent.

The Tribunal's reasoning involved a detailed examination of the documentary and oral evidence, including the testimony of the Applicant and three medical experts: Dr Slinger (Orthopaedic Surgeon for the Applicant), Dr Meyerkort (Consultant Occupational Physician for the Respondent), and Dr Cairns (Consultant Orthopaedic Surgeon for the Respondent). The Tribunal considered the Applicant's employment history, his reported symptoms, and the various medical reports and assessments. The central challenge was to resolve the conflicting medical opinions regarding the diagnosis and causation of the shoulder condition, and to apply the relevant provisions of the *SRC Act* to the established facts. The Tribunal ultimately set aside the previous determination and substituted its own decision, with costs awarded.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The determination of the issues is largely dependent on the interpretation of the evidence before the Tribunal. Consequently, the Tribunal will now examine the documentary evidence before it, as well as the evidence given by the witnesses at the hearing, being the Applicant, Dr Slinger, Dr Meyerkort, and Dr Cairns. Documentary medical evidence The Applicant is a 35 year old man (T4, page 8) who commenced employment with the Department on 16 June 2008 (T4, page 13). On 22 September 2008, the Applicant completed a form requesting permission to engage in outside employment, namely “Playing and Teaching Music” and “Recording music/ Bands” (T6.9, page 45). With respect to duration, the Applicant stated, “Varied, generally weekend work”. The Applicant’s request to engage in this outside employment was approved on 8 October 2008 (T6 .9, page 47). A further application with respect to “Selling Products on EBay” for “Approx 1-2 hrs per week after work” was approved on 6 June 2012 (T6 .11, page 51). On 1 August 2016, the Applicant reported occasionally having stiffness in his right shoulder during “mouse/keyboard usage” with the date of the incident being recorded as 29 July 2016 (T6.13, page 55). The section of the incident report completed by the Human Resources team stated that no rehabilitation was required. The Applicant had an ergonomic worksite assessment on 4 August 2016 after which some changes to the Applicant’s workstation were recommended, including a new mouse and keyboard (T6.3, page 30-35). The report noted that the Applicant “advised he spends a significant amount of time on the computer at home, both for Home administration tasks and online computer games” (T6.3, page 28). On 27 October 2016, the Applicant reported “muscle stiffness” in his “lower back and right shoulder” (T6.14, page 56). In the section reporting how he sustained the injury the Applicant’s recorded “Awkward position required to access screws to raise/lower monitor height”. As with the previous report of 1 August 2016, the section of the incident report completed by the Human Resources team stated that no rehabilitation was required (T6.14, page 56). On 8 February 2017, an ergonomic/manual handling assessment was undertaken for the Applicant. The purposes of the assessment were to assess manual handling techniques utilised by the Applicant when he was carrying out his duties as an IT support person and to recommend safe handling technique modifications (T6.7, page 39). The report recommended techniques to lower back strain when adjusting monitor arms and also recommended the purchase of a slide board or trolley on wheels, to enable easier access to cords and leads under the desk (T6.7, page 40). At the time of the lifting incident on 24 May 2017, the Applicant was employed as a “Corporate support officer” (T4, page 13). This was more particularly described as “deals with I.T issues and completes general admin duties” (T5, page 15). The Applicant’s normal working hours were 37.5 hours per week (T5, page 15).

Decision

Reasons for decision

On 10 October 2017, a Delegate affirmed the determination of 5 September 2017 (T21, page 173). This is the Reviewable Decision currently before the Tribunal. The Applicant was advised that the determination of 5 September 2017 had been affirmed in a letter dated 11 October 2017 (T21, page 175). On 15 November 2017, the Applicant, through his legal representatives, lodged an application for an extension of time to make an application for review in the Tribunal. The reason was “seeking legal advice and specialist appointment. Paperwork required for legal advice to be lodged” (T22, pages 178-179). On 24 November 2017, the Tribunal granted an extension of time until 15 January 2018 (T23, page 180). On 8 December 2017, the Applicant, through his legal representatives, lodged an application for a review of the Reviewable Decision (T1, pages 1-2). ISSUES The issue that requires determination by the Tribunal is whether the Respondent is liable to pay compensation to the Applicant for his right shoulder condition, in accordance with s 14 of the SRC Act. This requires consideration of the appropriate diagnosis of the Applicant’s shoulder condition and whether the condition is an:(a)injury (other than a disease) (s 5A(1)(b) of the SRC Act); or(b)ailment (as defined by s 4 of the SRC Act), or an aggravation of an ailment which satisfies the definition of a disease (s 5B(1) of the SRC Act).MATERIAL BEFORE THE TRIBUNAL The hearing of this application was on 6, 7 and 8 May 2019. Mr Morrissey appeared as Counsel for the Applicant, and was assisted by his instructing solicitor, Mr Wall. Dr Henderson appeared as Counsel for the Respondent, and was assisted by her instructing solicitor, Ms Pengli. The Applicant gave evidence and was cross-examined on the first day of the hearing.The Applicant also called Dr Barrie Slinger (Dr Slinger), Orthopaedic Surgeon, as a witness on the second day of the hearing. The Respondent called Dr Phillip Meyerkort (Dr Meyerkort), Consultant Occupational Physician, who gave evidence on the second day of the hearing, and Dr Anthony Cairns (Dr Cairns), Consultant Orthopaedic Surgeon, who gave evidence on the third day of the hearing. The Tribunal admitted the following documents into evidence at the hearing:(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 21 December 2018 (Exhibit A1);(b)Witness Statement of the Applicant dated 23 March 2018 (Exhibit A2); (c)Report of Dr Slinger dated 16 April 2019 (Exhibit A3);(d)Briefing letter to Dr Slinger dated 6 March 2019 (Exhibit A4);(e)Report of Dr Slinger dated 16 May 2018 (Exhibit A5);(f)Briefing letter to Dr Slinger dated 26 March 2018 (Exhibit A6);(g)Chapter from the AMA Guides to the Evaluation of Disease and Injury Causation titled "Shoulder Tendinopathy, Impingement, and Rotator Cuff Tears", pages 318 to 330 (Exhibit A7);(h)Letter from Mr Chong, Orthopaedic Surgeon, to the Applicant’s General Practitioner Dr Russell Wallis (Dr Wallis) dated 30 November 2017 (Exhibit A8);(i)Section 37 Documents (T-documents) numbered T1 to T23, comprising 180 pages (Exhibit R1);(j)Respondent’s SFIC dated 1 February 2019 (Exhibit R2);(k)Report of Dr Cairns dated 17 August 2018 (Exhibit R3);(l)Briefing letter to Dr Cairns dated 25 July 2018 (Exhibit R4);(m)Patient Health Summary for the Applicant from Brecken Health Care/MediLoss Australia printed on 20 April 2018 (Exhibit R5); and(n)Open Access Online Journal Article, titled “Calcific Tendinitis of the Shoulder”, referred to by Dr Meyerkort in his report dated 28 August 2017 in T14, page 120 (Exhibit R6).

Ratio Decidendi

Legal Principle Established

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