Kenda and Comcare (Compensation) - [2022] AATA 1452

Kenda and Comcare (Compensation) [2022] AATA 1452 (2 June 2022)
Division:GENERAL DIVISION
File Numbers: 2017/6600
2017/6622
2017/7338
2018/2015
2018/4493
2018/5058

Re:Danielle Kenda
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date: 2 June 2022
Place:Melbourne

The Tribunal affirms the decisions made in each of the decisions under review.
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Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – carpal tunnel syndrome right, lateral epicondylitis right, sprain of shoulder and upper arm (subdeltoid bursitis) right – claims of cervical spondylosis with foraminal stenosis and severe headaches, aggravation of temporomandibular joint disorder and complex regional pain syndrome – claims for medical procedures and treatment – claim for permanent impairment right shoulder – decisions under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Watson (1997) FCR 273
Secondary material
Comcare Guide to the Assessment of the Degree of Permanent Impairment (Ed. 2.1)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
BACKGROUND

This matter involves a series of applications arising from decisions made about a range of physical conditions said to arise from Ms Kenda’s employment as a paralegal at the Australian Government Solicitor (‘AGS’). I will set out here a brief chronology of the decision-making history.
Ms Kenda first made a formal claim for compensation in December 2012 for a number of physical conditions, and for a psychiatric condition. This claim was accepted in April 2013, with a date of injury in October 2012. She subsequently lodged a claim for newly reported physical conditions in May 2017, and this claim was rejected in August 2017 (application number 2017/6622). At the same time, the Respondent determined that it was no longer liable for physiotherapy in respect of the other previously accepted physical conditions (2017/6600). A subsequent request for a sympathetic nerve block to the thoracic spine was declined in late 2017 (2017/7338).
A request for a hydrodilatation procedure for Ms Kenda’s right shoulder was declined in March 2018 (2018/2015). Following this, in July 2018, the Respondent determined that it would no longer accept liability for medical treatment and incapacity payments in respect of the previously accepted physical conditions (2018/4493). Also in July 2018, Ms Kenda applied for consideration of a permanent impairment claim in respct of her ‘right shoulder’ and ‘right upper limb’. A decision was made in August 2018 to deny liability for permanent impairment, as a result of the then recent denial of ongoing liability (2018/5058).
The physical conditions, for which liability was accepted in 2013, are all conditions of Ms Kenda’s right upper limb: aggravation of carpal tunnel syndrome; lateral epicondylitis; and sprain of shoulder and upper arm (subdeltoid bursitis). These were said to have arisen in February 2011. Ms Kenda had undergone carpal tunnel decompression surgery in December 2010, which was privately funded.
The conditions newly reported in 2017 were: cervical spondylosis with foraminal stenosis and severe headaches; aggravation of temporomandibular joint disorder (‘TMJ’); and complex regional pain syndrome (‘CRPS’) right upper limb. The reported dates of…

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 Kenda and Comcare (Compensation)

Details

AGLC: Kenda and Comcare (Compensation) [2022] AATA 1452
Case: [2022] AATA 1452
Decision Date: 2 June 2022

CaseChat Overview and Summary

This matter concerned appeals by Ms Kenda against decisions made by Comcare regarding her claims for compensation. The dispute centred on whether certain medical conditions, treatments, and a claim for permanent impairment were compensable injuries under the relevant legislation, arising from her employment. The case was heard by Dr Stewart Fenwick, Senior Member.

The legal issues before the Tribunal were to determine, in relation to Ms Kenda's various claimed conditions including carpal tunnel syndrome, lateral epicondylitis, shoulder sprain, cervical spondylosis, temporomandibular joint disorder, and complex regional pain syndrome, whether these constituted injuries for which compensation was payable. Furthermore, the Tribunal had to consider claims for associated medical treatments and a claim for permanent impairment of her right shoulder.

The Senior Member considered Ms Kenda's employment history and duties, noting her work involved intensive computer use, drafting documents, and managing large volumes of files. While acknowledging her duties were demanding and that she lodged incident reports for neck and shoulder pain, and later experienced symptoms in her hand and elbow, the Tribunal found that for certain conditions, specifically lateral epicondylitis and permanent impairment of the right shoulder, the evidence did not meet the legislative threshold for a compensable injury. The Tribunal accepted the Respondent's contention that there was no assessment meeting the required threshold for permanent impairment.

Consequently, the Tribunal affirmed the decisions made by Comcare in each of the decisions under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For any injury found, consideration will need to be given to any of the related treatments for which Ms Kenda has sought payment, and to any permanent impairment arising.EVIDENCEWitnesses at hearingMs Kenda Ms Kenda confirmed the contents of her written statement (Exhibit A1). In this statement, relevantly, she states:(a)in December 1996 she worked with a litigation support database involving intensive use of a computer mouse, for which she lodged an incident report, was promoted to another role within approximately six months, and took voluntary redundancy in mid-1998;(b)that she returned to AGS in mid-2000, and was engaged on a time-based costing model (with a bonus component), in which her billing target was met within ordinary daily work hours;(c)at this time she was engaged in a range of paralegal duties, including drafting documents, writing file notes, using databases and compiling Tribunal documents of between 300-1800 folios, and inspecting and copying files;(d)her workload became hectic in late 2004/early 2005, and she lodged an incident report for neck and shoulder pain;(e)she began to feel tingling and numbness in her right hand and wrist in September 2010 and was diagnosed with CTS, undergoing surgery in December 2010;(f)at this time she worked in the Bankruptcy and Winding up areas of the practice, which involved keyboard and database use, as well as document preparation and filing, and she returned to this work wearing a splint after her surgery;(g)she lodged an incident report in March 2011 for aggravation of her wrist condition, and was experiencing quite pronounced symptoms in her hand and elbow;(h)that she continued to experience pain in her arm and neck and was troubled by her work, which included photocopying thousands of pages each day;(i)in late 2012 she experienced difficulty sleeping due to numbness and pain and she commenced medication for this, and she would constantly ruminate about the implications of her condition for her employment;(j)later in 2012 she experienced right shoulder pain, and by early 2013 she was experiencing difficulties managing her physical conditions, and a secondary anxiety condition, and found it challenging to perform cooking and household chores;(k)that she experienced jaw and neck pain in April 2013, and her General Practicitioner (‘GP’) emphasised that she should stick to her work restrictions, and that later in 2013 she spoke with her GP about her worsening anxiety over performance targets, as well as migraines and teeth grinding;(l)that in November 2013 she was ‘granted budget fee relief backdated to July 2013’, however work restrictions were ‘never complied with/implemented by my employer’;(m)in March 2017 a psychiatrist recommended treatment by a psychologist, and in or about April 2017 her rehabilitation file was closed by her employer;(n)in June 2017 she travelled to Europe on long service leave, and commenced seeing a psychiatrist in February 2018; and(o)that due to her injuries, she experiences difficulties with dressing and personal care, food preparation, household chores, shopping and gardening.

Decision

Reasons for decision

Accordingly, I accept the Respondent’s summary contention that there is no assessment that meets the threshold 10%. I note that, on the basis of my findings above with respect to the primary conditions, and in particular Ms Kenda’s shoulder symptoms, there is no injury in the terms of the Act to which the claim for permanent impairment might reasonably relate.DECISION For the reasons given above the Tribunal affirms the decision made in each of the decisions under review.

Ratio Decidendi

Legal Principle Established

Reviewable decisions have been made in respect of six different conditions, and in respect of three treatment types said to relate to those conditions, in addition to the permanent impairment decision. Given the significant overlap between medical conditions and symptoms, and the divergent diagnoses, I will deal with the conditions in groups. I will make determinations in terms of the legislation with respect to these groups of conditions.Preliminary considerations Prior to addressing the claims as outlined above, it is appropriate to take into consideration Ms Kenda’s employment history and duties. This is not only pertinent to the exploration of the necessary causal connection, but because of the considerable focus placed in the presentation of Ms Kenda’s case upon this issue. The Applicant’s submissions, for example, refer to the following elements of Ms Kenda’s evidence:(a)her database entry work in the late 1990’s using a large mouse intensively and repetitively;(b)the demanding responsibilities of her paralegal work, including supporting a team of lawyers and working in a time-based fee structure;(c)file inspection duties, including copying and collating, and preparation of Tribunal documents;(d)her extremely heavy and hectic workload in the early to mid 2000’s; and(e)the lodging of incident reports at various times. I note that Ms Kenda introduced evidence from members of the professional staff at AGS. However, I do not consider this material to have provided specific insights into Ms Kenda’s actual workload or work practices. Nonetheless, it is relevant to note that the Respondent’s submissions include the explicit acknowledgment that Ms Kenda found her duties demanding, and that this was supported by the evidence of Ms Heffernan. I am satisfied that, on the basis of the evidence overall, Ms Kenda was engaged in part time employment at the relevant times. Her pattern of work was, in the main, a three day week comprised of non-consecutive days at the office. I accept Ms Kenda’s evidence that she worked long hours on those days. I am also satisfied that Ms Kenda’s duties were diverse. It is apparent from the evidence that there were some periods during her employment where certain duties, be it database work, telephone work, or handling files, may have predominated. However, I consider that, overall, the better view is that her duties included a range of clerical tasks.Right upper limb conditions Lateral epicondyltitis This condition forms part of Ms Kenda’s first set of accepted claims. The first medical reference appears to be to a ‘sore elbow’ in a consultation with Dr Zebic on September 2011 (6600 and 6622/T6.1). There is radiology material from late 2012 indicating mild or low grade pathology in Ms Kenda’s right elbow (6600 and 6622/T4P, T5.3). The first is an ultrasound report that states there is a suggestion of a tear in the lateral collateral ligament. The second is an MRI that states there may be either a sprain or partial tear in the medial collateral ligament. It also notes a signal associated with the common extensor origin compatible with low grade tendinopathy. I note this structure is on the lateral aspect, or outside, of the elbow.