Knox and Comcare (Compensation)

Case [2019] AATA 2196

Knox and Comcare (Compensation) [2019] AATA 2196 (24 July 2019)

Division:GENERAL DIVISION

File Number:           2017/0920

Re:Georgina Knox

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:24 July 2019

Place:Perth

The Tribunal orders that:

(a)the reviewable decision be set aside and the matter be remitted to the Respondent for reconsideration with the direction that the symptoms suffered by the Applicant from January to May 2016 in her left shoulder and elbow associated with the Applicant’s conditions of rotator cuff tendonitis/subacromial bursitis/impingement left shoulder and common extensor origin tendonitis/lateral epicondylitis left elbow and any continuation of those symptoms were an injury for the purposes of s 14 of the SRC Act; and

(b)the Respondent pay the costs of these proceedings incurred by the Applicant.

........[sgd]................................................................

Deputy President Boyle

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant suffered an injury under s 5A – whether the Applicant suffered from a disease for the purposes of s 5A(1)(a) – whether the Applicant suffers from an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by the Applicant’s employment – whether suffering pain is, in itself or in conjunction with an underlying pathological condition suffered by the Applicant, an ailment or an aggravation of an ailment – Applicant’s pain as an aggravation of an ailment – decision under review is set aside and substituted

LEGISLATION

Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Federal Court of Australia Act 1976 (Cth) – s 25(6)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 4(1), 5A, 5A(1), 5A(1)(a), 5A(1)(b), 5A(1)(c), 5B, 5B(1), 5B(2), 5B(3), 6, 14, 14(1), 16

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

CASES

Australian Telecommunications Commission v Treloar (1989) 11 AAR 69; 90 ALR 202

Comcare v Canute (2005) 148 FCR 232
Comcare v Power (2015) 238 FCR 187
Comcare v PVYW (2013) 250 CLR 246
Comcare v Reardon (2015) 148 ALD 356
Comcare v ZZRP [2019] FCA 952
Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369
Ellis (by his Next Friend Christopher Graham Ellis) v East Metropolitan Health Service [2018] WADC 36
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Judith Ann Doherty and Comcare [1995] AATA 295
June Smith and Comcare [1995] AATA 344
Morehead and Australian Postal Corporation (Compensation) [2018] AATA 4535
Skobelkin-Mulcair and Comcare (Compensation) [2019] AATA 1054
Stefaniak and Comcare (Compensation) [2019] AATA 1866
Tippett v Australian Postal Corporation [1998] FCA 335

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

SECONDARY MATERIALS

Anandacoomarasamy et al, ‘The impact of obesity on the musculoskeletal system’ (2008) 32 International Journal of Obesity 211

Macquarie Dictionary (online at 22 July 2019)

Shorter Oxford English Dictionary (1992, Oxford University Press)

REASONS FOR DECISION

Deputy President Boyle

24 July 2019

THE APPLICATION

  1. The Applicant seeks the…

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AGLC
Knox and Comcare (Compensation) [2019] AATA 2196
Case
[2019] AATA 2196
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Respondent (Comcare) to affirm a determination that it was not liable to accept claims for left shoulder impingement and left lateral epicondylitis. The Applicant, employed as a Customer Service Officer since 1998, alleged that a heavy workload and changes in work procedures from January to May 2016 led to the onset of pain in her left shoulder and elbow. The Applicant's claim identified the conditions as "L Shoulder, Subacromial Bursitis and L Elbow Lat Epicondylitis," attributing the pain to excessive typing and computer mouse usage. The court was the Administrative Appeals Tribunal, presided over by Deputy President Boyle.

The Tribunal was required to determine whether the Applicant suffered an injury under section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Specifically, it needed to ascertain if the Applicant suffered from a disease or an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by her employment. A key question was whether the Applicant's pain, in itself or in conjunction with an underlying pathological condition, constituted an ailment or an aggravation of an ailment for the purposes of the Act.

The Tribunal reasoned that while the Applicant's underlying conditions (rotator cuff tendonitis and lateral epicondylitis) were degenerative and not significantly contributed to by her employment, the physical movements associated with her work activities were the proximate cause of her pain. The Tribunal accepted the Applicant's evidence that the increased workload, excessive typing, and constant mouse usage led to the onset of symptoms. Following established precedent, the Tribunal concluded that these work activities contributed to a significant degree to the aggravation of the Applicant's ailment, even if the "root cause" was the underlying degenerative condition. The Tribunal found that the longevity of employment was less indicative of contribution when the issue was aggravation rather than causation of pathology.

The Tribunal set aside the Respondent's decision and substituted it with a determination that the Applicant suffered an injury within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The factual evidence by both parties dealt at length with the Applicant’s workload and changes in what was required of the Applicant leading up to the onset of her symptoms from January through to May 2016 when she reported her symptoms to her team leader.The Applicant’s evidence on symptoms and workload As noted above, the Applicant made two statements (A2 and A3). In the first of her statements (A3) the Applicant said:·she works (and presumably did work at the time of the onset of symptoms January-May 2016) full-time nine days a fortnight;·the work entails working in a rostered environment of inbound/outbound phone calls, follow up/processing of work, meetings and training sessions;·she was required to handle customer enquiries in a professional and courteous manner within the APS Code of Conduct ensuring that the customer is satisfied with the service;·she was required to process work in a timely manner and meet key performance indicators (KPI);·some of the work involved complexity, the making of difficult decisions and lengthy written documentation;·the overall KPI for inbound calls was three minutes per call which required the Applicant to complete tasks “in real time” while the customer was on the phone;·in May 2016 she had an allowance of two to five minutes between calls to finish any processing before the next call which meant typing documents/notes as quickly as possible and recording any follow up action required;·she was required as part of the process to use multiple templates with multiple options;·prior to her “injury” the Applicant maintained 60-80 in-trays (electronic) over a 14 day period with minimal overdue work;·the method of work changed “[a]pproximately 2 years ago” (i.e. around September 2015). New customer officers were expected to take phone calls received from both business lines after 3 pm;·she was expected to finalise any work arising out of the phone call and transfer the customer to a general pool on the system;·this change in processing increased the number of matters to approximately 100-120 pieces in her in-tray (presumably from 60-80) over the 14 day period;·since the “restructure” the Applicant says that she noticed a considerable increase to her allocations of work coming in from both the New Customers business line and the Mainstream business line;·since the change in the procedures she has struggled to maintain the workload under the expected 100 items in the in-tray;·over the six to eight months leading up to May 2016 she had to work fast to maintain and sustain a reasonable level in finalising work to meet KPI;·the increased in-tray numbers and phone calls meant a lot of additional documentation of customer contacts and decisions which placed immense stress on her body and especially her shoulder and elbow resulting in the gradual onset of pain in both;·her performance report for the period from December 2013 to May 2016 shows that her workload increased from 198 in-trays to 360 in-trays;·over that period there was an increase in the number of incoming calls;·with the increase in the workload she could not complete all of the tasks associated with a call in the two to five minute window between calls;·the pressure of typing quickly was enormous and she was questioned when she did not meet KPI;·macro templates were introduced to ensure that all information was captured from customers;·the new macros used only one macro per New Customer;·that changed when the Applicant was moved into the Mainstream work (when is not clear) where there are from one to seven macros per customer;·each macro required use of the mouse to select the relevant option which caused her to use the mouse “excessively” requiring her to move her arm back and forth from the keyboard to the mouse constantly and clicking the mouse to copy and paste information; and·the limited time, with the increased work required, necessitated the Applicant typing quicker.

Decision

Reasons for decision

The Applicant seeks the review of a decision of the Respondent made on 21 December 2016 (the reviewable decision) (R9, T11) to affirm a determination made on 3 November 2016 (the determination) (R9, T9). The determination was not to accept liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for claims for “left shoulder impingement on the background of degenerative change in her shoulder” and “left lateral epicondylitis on the background of extensor origin tendinopathy”. The claim for compensation submitted by the Applicant (R9, T3) identified the conditions for which claim was made as “L Shoulder, Subacromial Bursitis and L Elbow Lat Epicondylitis” (R9, T3 at 7). BACKGOUND The Applicant was born in April 1964. The Applicant commenced employment with the Department of Human Services (DHS) in 1998. At the time of her claimed injury in May 2016 the Applicant was, and had been for the term of her employment by DHS, employed as a Customer Service Officer (CSO) (Applicant’s statement A3). The Applicant is still employed by the Respondent in the CSO role in the New Customers business line. In her Workers’ Compensation Claim form dated 9 September 2016 (the claim form)(R9, T3), the Applicant, in response to the question “What happened and how were you injured?”, stated (R9, T3 at 7):During a heavy workload period that started in Jan 2016 I noticed my shoulder was beginning to hurt and then by March/April my elbow started hurting as well. At the time I was using a [sic] Evoluent Mouse. By May the pain was getting very uncomfortable. The pain did increase throughout the working work [sic] from excessive typing and computer mouse usage. In the claim form, in response to the question “When did you first notice your symptoms/injury?” the Applicant advised “27/05/2016 3:00 PM” (R9, T3 at 8) and in response to the question “When did you first seek medical treatment?” the Applicant advised “28/05/2016” (R9, T3 at 9). The Applicant obtained the first medical certificate dated 28 May 2016 (R9, T5.2) from Dr John Cameron. That certificate, in response to the statement “[w]orker’s description of the injury/disease, etc.” advised “L shoulder/elbow pain” and in response to the statement “[w]orker’s description of how it occurred” advised “Using a computer mouse and excessive typing with L arm”. Dr Cameron’s “[m]edical Assessment” in that first medical certificate was “subacromial bursitis/Moderate lateral epicondylitis”. The Applicant reported the onset of her symptoms to her team leader, Mr Wassim Arabi. The evidence as to the date when she made that report is conflicting. In her witness statement dated 21 September 2017 (A3) the Applicant does not refer to her having advised her team leader or any other representative of the Respondent of the onset of symptoms. That witness statement identifies the date of the injury as 27 May 2016. Her witness statement dated 6 April 2018 (A2) says that she reported her injury to her team leader on 12 May 2016 (A2, para. 41). That witness statement also identifies the date of the Applicant’s injury as being 27 May 2016. As noted above at [8], the Applicant’s claim form identified the date of the onset of her symptoms as 27 May 2016 which suggests that she could not have reported her injury/symptoms to her team leader on 12 May 2016 or 27 May 2016 was not the date of the onset of her symptoms.

Ratio Decidendi

Legal Principle Established

Section 5B(2) of the SRC Act identifies matters that the Tribunal may take into account in determining whether an ailment or an aggravation of an ailment was contributed to, to a significant degree, by the employee’s employment (see [27] above).(a) The duration of the employment The Applicant has worked for DHS since 1998. As far as the evidence indicates the Applicant had not suffered any relevant symptoms until the onset of shoulder pain in January 2016 followed a month or two later by the elbow pain. That pain reached “unbearable” levels by May 2016 at which time the Applicant reported her “injury” to her team leader. Insofar as longevity is a matter to be taken into account, the fact that the Applicant had worked for DHS for around 16 years without suffering any symptoms may indicate that the onset of symptoms starting in January 2016 was not related to or contributed to, to a significant degree, by her employment. The Tribunal does accept that various changes were introduced to the workplace in the 12 months or thereabouts leading up to the onset of symptoms in January 2016 which caused an increase in the Applicant’s use of the mouse and an increase in the typing required of the Applicant. The Tribunal understands that the Applicant runs her case on the primary argument that work had contributed to an aggravation of an ailment, not that her work had caused the underlying pathology of rotator cuff tendonitis/subacromial bursitis/impingement left shoulder and common extensor origin tendonitis/lateral epicondylitis left elbow. In any event the medical evidence would not support a finding that the underlying condition was contributed to, to a significant degree, by her employment. The medical evidence largely accepts that the underlying conditions are degenerative in nature. Where the issue is one of whether there was an aggravation rather than whether the employment has caused or contributed to a pathology, the longevity of employment is less indicative of contribution.(b) The nature of, and particular tasks involved in, the employment It seems not to be disputed that the Applicant started to suffer pain in operating the mouse and typing. Her evidence was that that pain built up over the working day and week as she worked. The Tribunal accepts the Applicant’s evidence in that regard. Given the Tribunal’s finding that it is bound to follow the approach taken by Finkelstein J and followed by Mortimer J (see [129] above), the fact is that irrespective of the longevity of the Applicant’s employment or other factors, the physical movements that she made at work caused her to suffer the onset of symptoms. As the Tribunal is primarily considering whether the work activities contributed to the onset of symptoms, this consideration falls in favour of the employment being treated as having contributed, to a significant degree, to the aggravation of the ailment. In effect the hand and arm movements associated with the Applicant’s work were the proximate cause of the pain even if the “root cause” of the pain was the Applicant’s underlying ailment.(c) Any predisposition of the employee to the ailment or aggravation