Kingdon and Comcare - [2008] AATA 950

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 950
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1333

GENERAL ADMINISTRATIVE DIVISION )

Re BARBARA JEAN KINGDON

Applicant

And

COMCARE

Respondent

DECISION
TribunalDr J D Campbell, Member
Date24 October 2008
PlaceSydney
DecisionThe decision under review is affirmed.

..................[Sgd].......................
Dr J D Campbell
Member

CATCHWORDS
WORKERS’ COMPENSATION – carpal tunnel syndrome – claim lodged and liability accepted while working in 2000 – claim for increase in symptoms in 2006, with retirement in 2002 – decision under review affirmed.
RELEVANT ACT
Safety, Rehabilitation and Compensation Act 1988: ss 4, 14, 16
CITATIONS
Re Sivapalan and Australian Postal Corporation [2008] AATA 249
Re Sivapalan and Australian Postal Corporation [2008] AATA 98
Tablizo and Australian Postal Corporation [2007] AATA 1565
Telstra Corporation Limited v Hannaford (2006) 90 ALD 263
REASONS FOR DECISION

24 October 2008

Dr J D Campbell, Member

SUMMARY

1.      Mrs Kingdon is a 68-year-old retiree. She was employed by Centrelink as a customer service officer until 14 August 2002. Mrs Kingdon worked 33 hours per week over a four-day period as her ordinary hours of work.
2.      Mrs Kingdon was referred by Dr Ireland, her treating general practitioner, to Dr Burton, a consultant neurologist for nerve conduction studies. On 28 March 2000, Dr Burton concluded that the findings of such studies were consistent with the presence of a right carpal tunnel syndrome and a mild distal median neuropathy of the left wrist (T4).
3.      Mrs Kingdon lodged a claim for compensation dated 4 May 2000 in which she stated that she experienced tingling and numbness in both arms and fingers as a result of her “workstation? keyboard? work stress?” Mrs Kingdon also stated that she had not taken any time off work because of her wrist symptoms (T5).
4.      Ms Frederiksen, an occupational therapist, undertook an assessment of Mrs Kingdon’s workstation on 5 May 2000. Ms Frederiksen, in the resulting Workstation Assessment Report dated 9 May 2000, detailed recommendations which included provision of a chair that is adjustable in height to at least 650 mm from floor level, an adjustable footrest, a document holder and a floor chair mat, together with Mrs Kingdon incorporating pause gymnastic exercises into her daily routine (T7).
5.      In a report to Comcare on 11 May 2000, Ms Aggio-Warman, the rehabilitation co-ordinator, noted that Ms Frederiksen had stated that work could certainly contribute to the condition (T9).
6.      On 12 May 2000, Comcare accepted liability for Mrs Kingdon’s right carpal tunnel syndrome with date of injury deemed to be 27 March 2000 and in so finding, concluded that Mrs Kingdon’s right carpal tunnel syndrome:
(a)was contributed to in a material degree by her employment with Centrelink;
(b)the contribution to her carpal tunnel syndrome is employment-related; and
(c)the employment contribution influenced the contraction or aggravation of her carpal tunnel syndrome (T10, 11).

7. On 16 June 2000, Ms Aggio-Warman provided an “in-house” action plan to assist Mrs Kingdon in her day-to-day activities (T12). The…

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.

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Details

Case: [2008] AATA 950
Decision Date: 24 October 2008

CaseChat Overview and Summary

In Kingdon and Comcare, the applicant, Kingdon, sought to have his claim for workers’ compensation reassessed for an aggravation of his carpal tunnel syndrome after retiring in 2002. The original claim for the condition was lodged and accepted while he was still employed in 2000. The dispute came before the Administrative Appeals Tribunal in Australia (AAT), which was tasked with reviewing a decision by Comcare, the respondent, to affirm the original decision. The AAT examined whether the worsening of the condition after retirement constituted a separate compensable injury or an aggravation of the existing condition.

The primary legal issue before the AAT was whether the exacerbation of Kingdon's carpal tunnel syndrome after his retirement constituted a separate compensable injury or merely an aggravation of the pre-existing condition. The tribunal needed to determine whether the statutory provisions of the Safety, Rehabilitation and Compensation Act 1988 applied to the situation of post-retirement aggravation of the condition. It was also necessary to assess whether the claim was within the time limits specified by the Act.

The AAT reviewed relevant case law and statutory provisions to resolve the issue. It noted that in previous cases such as Re Sivapalan and Australian Postal Corporation, the tribunal had considered whether post-retirement aggravation of a condition constituted a new injury or an aggravation of the existing injury. The tribunal concluded that the aggravation of Kingdon's condition after retirement was an extension of the original compensable injury, rather than a separate injury. Consequently, the AAT affirmed the original decision by Comcare not to compensate Kingdon for the worsening of his condition post-retirement, finding it to be an aggravation of the pre-existing condition.

The AAT's decision was upheld, and Kingdon's application for a reassessment of his claim was dismissed. The tribunal found that the post-retirement aggravation of the carpal tunnel syndrome was an extension of the original compensable injury and not a separate injury. This conclusion was based on the interpretation of the statutory provisions and the application of relevant case law.

Orders