Hook and Comcare (Compensation) - [2020] AATA 1792

Hook and Comcare (Compensation) [2020] AATA 1792 (17 June 2020)
Division:GENERAL DIVISION
File Number: 2019/0853
Re:Nathan Hook
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President I. Hanger AM QC
Date:17 June 2020
Place:Brisbane

The Tribunal affirms the decision under review.
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Deputy President I. Hanger AM QC
CATCHWORDS
WORKERS COMPENSATION – cervical spondylosis – whether applicant suffered a disease or an aggravation of a disease for the purposes of section 5B(1)(b) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the disease or aggravation of disease was contributed to in a significant degree by the applicant’s employment – whether the applicant suffered an injury which arose out of or in the course of his employment pursuant to section 5A(1)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 5A, 14
CASES
Szajna v Australian Postal Corporation [2014] FCA 1136
REASONS FOR DECISION
Deputy President I. Hanger AM QC
17 June 2020
BACKGROUND

Mr Hook (“the applicant”) is employed by the Department of Human Services (“DHS”) in a Child Support Smart Centre in Brisbane and has been employed by the DHS since 9 February 2009[1].
[1] Exhibit 1, T Documents, T12, Timeline of Events and Date Specification, pages 68 – 69.
In the course of his work the applicant has to look at more than one computer screen. That involved turning his head from one computer screen to another; making notes and dealing with phone calls.[2] On 13 August 2018[3] he says that he was completing a phone call with a customer and turned his head to the left in order to make notes on a notepad on his desk.[4] He felt pain in his upper arm and neck after turning his head.[5] He was seen by the first-aid officer and taken off manning phones for a couple of hours and then went home on sick leave.[6] On 28 August 2018 he submitted a claim for workers’ compensation for an “injured neck/shoulder and left arm”.[7]
[2] Exhibit 1, T Documents, T12, Job task analysis, page 115 – 119; T19 Request for reconsideration, page 176.
[3] Exhibit 1, T Documents, T12, Injury Report, pages 90 – 91,
[4] Exhibit 1, T Documents, T5, Workers Compensation Claim Form, page 45; T12, Injury Report, page 90.
[5] Ibid.
[6] Exhibit 1, T Documents, T12, Manager’s timeline of events, page 112.
[7] Exhibit 1, T Documents, T5, Workers Compensation Claim Form, page 45.
The issue in dispute is whether the applicant is entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in respect of the incident. Section 14(1) of the Act provides “…Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.”
That involves a consideration of the proper diagnosis of the condition; whether…

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 Hook and Comcare (Compensation)

Details

AGLC: Hook and Comcare (Compensation) [2020] AATA 1792
Case: [2020] AATA 1792
Decision Date: 17 June 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Hook, against a decision by Comcare regarding a claim for workers' compensation. The dispute centred on whether the applicant had suffered an injury within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) due to his employment. The court was required to consider the applicant's condition of cervical spondylosis and whether it constituted a disease or an aggravation of a disease, and if so, whether it was contributed to in a significant degree by his employment.

The legal issues before the court were twofold. Firstly, it needed to determine if the applicant suffered a "disease" or an "aggravation of a disease" for the purposes of section 5B(1)(b) of the Act, and if such a condition was contributed to in a significant degree by his employment. Secondly, the court had to consider whether the applicant suffered an "injury" that arose out of or in the course of his employment, pursuant to section 5A(1)(c) of the Act.

The court considered medical evidence which indicated the applicant had pre-existing cervical spondylosis. Expert opinions suggested that while the applicant's work tasks did not cause the underlying spondylosis, his employment activities may have led to an aggravation of this pre-existing condition. One opinion stated that the exacerbation was symptomatic and that the connection to employment was merely coincidental to the timing of the symptoms. Another opinion could not exclude the possibility that the symptoms were due to an acute event at work. The court ultimately affirmed the decision under review, indicating that the applicant had not satisfied the relevant legal tests for establishing a compensable injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

That involves a consideration of the proper diagnosis of the condition; whether the applicant suffered a disease or an aggravation of a disease pursuant to section 5B(1)(b) of the Act; and if so whether that disease or aggravation of disease was contributed to in a significant degree by his employment. It also involves a consideration of the issue as to whether the applicant suffered an injury which arose out of or in the course of his employment pursuant to section 5A(1)(c) of the Act.MEDICAL EVIDENCE On 27 August 2018 an MRI was conducted of the applicant’s cervical spine.[8] It showed “spondylotic changes associated with the C5/6 level with mild disc bulge as well as uncovertebral osteophyte formation resulting in foraminal narrowing bilaterally. Impingement of the C6 nerve roots were suspected bilaterally.”[9][8] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, Annexure 1[9] Ibid. On 10 October 2018 the applicant was examined by Dr Blair Christian, an occupational physician, who reported that in his non-specialist radiologist opinion the MRI films showed that the applicant had a degree of mild spondylosis present with disc bulge at C5/6 and C6/7 leading to some narrowing of the nerve root exits of the left C6 and C7 nerve roots.[10] The doctor expressed the opinion that the applicant’s work tasks did not cause the underlying cervical spondylosis and that the neck and left arm pain was due to an aggravation of the pre-existing spondylosis with disc bulges. He opined that the simple act of turning the head to the left would not ordinarily be expected to lead to cervical spine pain or irritation of the nerve roots in the spine without a degree of pre-existing spondylosis or disc bulge.[11] Turning the head as the applicant described would not be expected to lead to an injury such as a disc extrusion.[10] Exhibit 1, T Documents, T15, Report of Dr Blair Christian dated 23 October 2018, page 144. [11] Exhibit 1, T Documents, T15, Report of Dr Blair Christian dated 23 October 2018, page 144. Dr Simon F. Journeaux is a Consultant Orthopaedic Surgeon. He provided a report dated 24 June 2019[12] and concluded that the applicant suffered from C5/6 cervical spondylosis with a prolapsed intervertebral disc which was pre-existing but asymptomatic.[13] He expressed the opinion that the turning of the head at work caused an exacerbation in symptomatic terms of the degenerative pre-existing pathology and that the only connection with employment is that the applicant happened to be at work at the time.[14][12] Exhibit 5, Report of Dr Simon F Journeaux dated 24 June 2019. [13] Ibid, page 9, [14] Ibid. Dr Journeaux provided a supplementary report on 18 July 2019[15] and expressed the opinion that there was no work-related activity that would have had a significant relationship to the onset of the survival spondylotic symptoms.[16][15] Exhibit 7, Supplementary Report of Dr Simon F Journeaux dated 18 July 2019. [16] Ibid, page 3. On 18 September 2019 Dr Christiaan Mostert, a general practitioner, who saw the applicant immediately after the incident on 13 August 2018 stated that the spondylosis is an obvious pre-existing condition but that he had no evidence of proof that the bulging disc was long-standing and that he could not exclude the possibility that the symptoms experienced were due to any acute event occurring at work when he turned his neck.[17] [17] Exhibit 10, Report of Dr Christiaan Mostert dated 18 September 2019, page 1.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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