Jaudzems and Comcare (Compensation) - [2024] AATA 32

Jaudzems and Comcare (Compensation) [2024] AATA 32 (17 January 2024)
Division:GENERAL DIVISION
File Number(s): 2022/6211
Re:Karina Jaudzems
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member A Ward
Date:17 January 2024
Place:Adelaide

The decision under review is set aside and in substitution it is decided that the Applicant’s claim satisfies the criteria under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Subject to any application on the issue of costs to be made within 14 days of the date of this order, the Respondent is to pay the Applicant’s costs of this application to be determined by the Tribunal if not agreed.

...................[Sgnd].................................
Member A Ward
CATCHWORDS
WORKERS COMPENSATION – Commonwealth employee - pre-existing condition – significant contribution from employment – arm/wrist injury – decision under review set aside and substituted.
PROCEDURE – very late application to adjourn refused – no prejudice demonstrated – right of parties for matter to proceed in timely fashion – Tribunal and parties’ resources.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES

Comcare v Reardon [2015] FCA 1166; (2015) 148 ALD 356
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kelman and Prosegur Australia Pty Ltd [2014] AATA 675
Tippett v Australian Postal Corporation (1998) FCA 335
REASONS FOR DECISION
Member A Ward
17 January 2024

This is a claim for injuries Ms Karina Jaudzems (“the Applicant”) says she sustained in the course of her employment with the Bureau of Statistics (“BOS”) arising on or about 9 March 2021. The injuries claimed are to the Applicant’s right arm wrist and hand. She is right-handed.
By decision dated 31 May 2022, Comcare (“the Respondent”) rejected the Applicant’s workers’ compensation claim. That decision was reaffirmed on 25 July 2022 and is the subject of these proceedings. The terms synovitis and tenosynovitis were used by the Respondent as a descriptor.
For reasons set out below, the Applicant has been successful in her claim to overturn the decision of the Respondent. She suffers from tendonitis which is an ailment pursuant to s 5B(1)(a) of the Safety, Rehabilitation and Compensation Act1988 (“the Act") which has been (and remains) contributed to by a significant degree by her work duties.
RELEVANT FACTS
The Applicant has a developmental condition in both of her wrists, being Madelung deformity, and there is agreement that developmental condition was not caused by the Applicant’s employment.
The Applicant has suffered wrist symptoms. These have been variously described, but the location in her right arm has been consistent and has been described for the Tribunal in a diagram as running from the bottom of her right thumb and right index finger and up across her wrist to her right elbow.[1] She had a plaster on her arm whilst giving evidence in these proceedings. Right wrist/arm pain is a fair lay description. Chronic tendonitis was used by Dr Wallwork and Dr Hwang.
[1] Exhibit 4, Photograph of the Applicant’s Arm.
The case…

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 Jaudzems and Comcare (Compensation)

Details

AGLC: Jaudzems and Comcare (Compensation) [2024] AATA 32
Case: [2024] AATA 32
Decision Date: 17 January 2024

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms. Jaudzems, against a decision by Comcare regarding her workers' compensation claim. The Applicant suffers from tendonitis, a condition she argued was significantly contributed to by her employment duties. While she has a pre-existing developmental condition in her wrists, the Applicant contended that her work, which involves prolonged computer use, aggravated this condition, leading to her current symptoms. Comcare had previously accepted earlier claims for similar symptoms, but the current dispute centred on whether her employment had significantly contributed to her ongoing right arm and wrist pain.

The primary legal issue before the Tribunal was whether the Applicant's employment duties had contributed to a significant degree to her current condition of tendonitis, as required by section 5B(1)(a) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Tribunal also had to consider a procedural application by Comcare to adjourn the hearing on the morning it was due to commence, to obtain a further report from their expert, Dr. Pope, following the Applicant's submission of a further report from her treating surgeon, Dr. Wallwork.

The Tribunal refused Comcare's application for an adjournment, noting that Comcare had been aware of the further report and submissions for some time and had the opportunity to seek further instructions or raise objections earlier. The Tribunal found that Comcare had not demonstrated any prejudice arising from these developments, and that it was a fundamental right for matters to proceed in a timely fashion, respecting the resources of the Tribunal and the parties. Applying the principles from *Comcare v Reardon* and other relevant case law, the Tribunal found as a matter of fact that the Applicant's employment had contributed to her condition to a significant degree.

Consequently, the Tribunal set aside the decision under review and substituted a new decision finding that the Applicant's claim satisfied the criteria under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Comcare was ordered to pay the Applicant's costs of the application, to be determined by the Tribunal if not agreed within 14 days.

Orders

Orders of the court

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Background

Background to the litigation

For reasons set out below, the Applicant has been successful in her claim to overturn the decision of the Respondent. She suffers from tendonitis which is an ailment pursuant to s 5B(1)(a) of the Safety, Rehabilitation and Compensation Act1988 (“the Act") which has been (and remains) contributed to by a significant degree by her work duties.RELEVANT FACTS The Applicant has a developmental condition in both of her wrists, being Madelung deformity, and there is agreement that developmental condition was not caused by the Applicant’s employment. The Applicant has suffered wrist symptoms. These have been variously described, but the location in her right arm has been consistent and has been described for the Tribunal in a diagram as running from the bottom of her right thumb and right index finger and up across her wrist to her right elbow.[1] She had a plaster on her arm whilst giving evidence in these proceedings. Right wrist/arm pain is a fair lay description. Chronic tendonitis was used by Dr Wallwork and Dr Hwang. [1] Exhibit 4, Photograph of the Applicant’s Arm. The case presented by the Applicant is that she has suffered an aggravation of her condition and this aggravation was caused by her specific work duties. These consist of prolonged sustained work on a computer, either on the keyboard or using a mouse, and cannot be avoided in her usual duties at the BOS, although in the past (and this condition has affected her in the past) she has worked at different duties with much less keyboard and mouse use and concordantly – much less pain. These prior symptoms had affected her from the time she commenced her employment at the BOS in 2006 and which gave rise to a claim in that year which was accepted. She had pain in her wrist when using a mouse.[2][2] Exhibit 2, Supplementary T-Documents, page 74. After treatment and modification of duties, the Applicant returned to her “normal” duties. She had a further exacerbation of symptoms and another claim on 10 November 2008. Frequent use of the keyboard and mouse where noted. These claims were accepted. The Applicant’s evidence, which was not contradicted, was that she did not have symptoms with her wrists prior to her employment at the BOS. By way of further background, the Applicant’s symptoms were bilateral. She had surgery on the left arm in 2011 which greatly improved her condition. Her right wrist had been problematic. Her treating surgeon was Dr Wallwork. The Applicant also reported from time-to-time other problems with her wrist. However, she has said with regard to her previous compensation claims, that these claims caused her anxiety with a view on her part that they actually had an adverse effect on the way she was viewed by her employer. Thus, there was a reluctance on her part to complain. However, the employment records show adjustments to her duties made by her employer from time to time when she had an increase in her symptoms, but not necessarily linked to a claim. This shows a level of support by her direct employers. However, one can understand an employee might feel reluctant to be seen as a complaint-maker. It is accepted that she continued to have problems following her earlier claims, but was reluctant to make too much of them, and her employer provided some support.

Evidence

Evidence Before The Court

In reaching this view the tribunal has considered Comcare v Reardon,[11] and the cases considered by Mortimer J in it.[11] [2015] FCA 1166.PROCEDURAL ISSUE ON EVIDENCE On the morning of the commencement of the hearing, the Respondent wanted to refer to the fact that a further report had been obtained (in answer to the Respondent’s expert Dr Pope’s second report) from the treating orthopaedic surgeon, Dr Wallwork. In addition, the Applicant had served further opening submissions. These are matters (follow up evidence and submissions) that were canvassed in a directions hearing approximately one month prior to the commencement of the hearing proper. As a matter of fairness, the notes indicate that the particular directions hearing coincided with the shutdown of the Optus system which meant that the Respondent was without communication and could not attend at the directions hearing. However, subsequent email communications between the Registry, the Respondent’s solicitors and the Applicant’s solicitors indicate that the Respondent was aware of a further report being obtained and that further opening submissions were going to be made. No application was made by the Respondent to query or block that approach prior to the hearing. In addition, the Tribunal was advised that the Respondent’s legal advisors were able to confer with their specialist Dr Pope on the matters raised in the further report of Dr Wallwork. When the matter was first brought to the Tribunal’s attention at the commencement of the hearing proper, it was on the basis that there would be no application to adjourn the hearing to remedy whatever prejudice might have arisen from those steps being taken (despite the opportunity to intervene at a time earlier than the commencement of the hearing). The Tribunal was informed that the point was raised with some reference to a costs issue that might be taken at a later point. The nature of the possible point was by no means clear. An adjournment was then provided for the Respondent to obtain further instructions. Following this, the Respondent then made an application for the whole hearing to be adjourned so that a further report could be obtained from Dr Pope. That was inconsistent with the fact that Dr Pope had been consulted on the further report of Dr Wallwork and so presumably was able to provide his views upon it. There was no suggestion otherwise, nor that Dr Pope needed more time to finalise his views. It was also inconsistent with there being no need for an adjournment of the whole matter approximately half an hour earlier when this was first raised. It is a fundamental right that these matters are dealt with in a timely fashion with a view to the appropriate use of the Tribunal’s and parties’ resources. However, procedural fairness must always be the touchstone. The Respondent could not point to any prejudice in association with these applications. If Dr Pope’s opinion had changed, that should have been brought to the attention of the Tribunal when his opinion changed – which would have been disclosed to the Respondent’s advisors at the prehearing proofing. However, in his evidence, it was clear his opinion had not changed as a consequence of anything he saw in Dr Wallwork’s last report nor as a result of any issue he was able to discuss with the Respondent’s legal advisors.

Decision

Reasons for decision

As a matter of fact, in this case, the Applicant’s employment contributed to her condition to a significant degree.DECISION The decision under review is set aside and in substitution it is decided that the Applicant’s claim satisfies the criteria under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Subject to any application on the issue of costs to be made within 14 days of the date of this order, the Respondent is to pay the Applicant’s costs of this application to be determined by the Tribunal if not agreed.

Ratio Decidendi

Legal Principle Established

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