LHHL and Comcare (Compensation)

Case [2018] AATA 3272

LHHL and Comcare (Compensation) [2018] AATA 3272 (7 September 2018)

Division:GENERAL DIVISION

File Number(s):      2017/0688

Re:LHHL

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms S Taglieri SC, Member

Date:7 September 2018

Place:Hobart

The decision under review is set aside and remitted to the respondent to give effect to these reasons.

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

Ms S Taglieri SC, Member

CATCHWORDS

COMPENSATION – liability for previously accepted injury – entitlement to medical expenses and incapacity payments – nature of original compensable injury – whether effects of compensable injury are continuing – subacromial bursitis – secondary complex regional pain syndrome – decision under review set aside and remitted.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 16 & 19

CASES

Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536
Department of Defence v Trudie Anne Speed [1993] FCA 130
EMI (Australia) Ltd v Bes [1970] 2 NSWR 238
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Mellor v Australian Postal Corporation [2009] FCA 504; (2009) 108 ALD 159
Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Su v Comcare [2011] AATA 934
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87; (2006) 151 FCR 253
Tippett v Australian Postal Corporation [1998] FCA 335; (1998) 27 AAR 40

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316

REASONS FOR DECISION

Ms S Taglieri SC, Member

7 September 2018

INTRODUCTION AND BACKGROUND

  1. The applicant has been employed at the Australian Taxation Office (the ATO) since 2007 and has engaged in various clerical and computer-based duties in such employment.

  2. In 2009 the applicant experienced symptoms of pain and discomfort in her spine while performing computer-based work in her employment. For the purpose of this review, the applicant claims that when she experienced spinal pain in 2009, she also had symptoms in her right shoulder. An ergonomic assessment of the applicant’s work station was undertaken by her employer[1] but no claim for workers’ compensation was made pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). It seems likely that there was no incapacity for work at this time, either relating to her spinal or shoulder symptoms.

    [1] T3, pp 5-8.

  3. In 2011 the applicant was transferred to the superannuation area of the ATO. She claimed that the work in this area largely involved regular and prolonged computer-based work, particularly using a mouse. The applicant claims that in approximately April 2011 she again experienced symptoms of pain in her right shoulder, which gradually deteriorated and she sought medical treatment and subsequently had time off work.

  4. The applicant made a claim for compensation on 4 October 2011 in respect of a right shoulder injury (the compensation claim).[2] The compensation claim was initially accepted and the determination made on…

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Details
AGLC
LHHL and Comcare (Compensation) [2018] AATA 3272
Case
[2018] AATA 3272
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by LHHL against a decision by Comcare regarding compensation for previously accepted injuries. The dispute centred on whether the applicant continued to suffer from the effects of a compensable injury, specifically subacromial bursitis and secondary complex regional pain syndrome, and consequently remained entitled to medical expenses and incapacity payments. The decision was made by Ms S Taglieri SC, Member, of the Tribunal.

The legal issues before the Tribunal were whether the applicant was still suffering from the effects of the original compensable injury and, if so, whether this entitled her to ongoing medical expenses and incapacity payments. The Tribunal was required to assess the nature of the original compensable injury and determine if its effects were continuing, particularly in light of the development of secondary complex regional pain syndrome.

The Tribunal accepted the applicant's evidence regarding the significant increase in computer-based work, including extensive mouse-work in a prolonged and extended shoulder position, which contributed to her symptoms. While acknowledging some minor inconsistencies in the applicant's evidence, the Tribunal found them largely explained or due to misunderstandings. The Tribunal was satisfied that the applicant continued to suffer from the effects of the compensable condition, secondary complex regional pain syndrome. Consequently, the Tribunal set aside the reviewable decision, finding it erroneous in its conclusion that the applicant no longer suffered from the effects of a compensable condition, and remitted the matter to Comcare for further action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal broadly accepted the evidence of the applicant as truthful and reliable in respect of relevant issues. To the extent that there may have been some apparent inconsistencies,[9] they are largely explained or due to apparent misunderstandings of medical opinion or other matters.[9] As submitted and particularised in a typed document forming part of the respondent’s closing submissions.EVIDENCE BEFORE THE TRIBUNAL The applicant gave evidence that in 2011 after transferring to the superannuation area of the ATO, the frequency, intensity and duration of computer-based work significantly increased by comparison to the duties she had been performing in 2010. In particular, the applicant’s evidence was that she was required to undertake extensive mouse-work in a position with her right shoulder forward and extended to her right because of the set-up of her workstation. This was said to be because she routinely had an A4 notepad positioned to the right of her keyboard, with her mouse to the right of the A4 notepad. The applicant also gave evidence that the position of the telephone on her workstation meant that she was required to reach forward to the phone with her right upper limb to take and terminate a call. The applicant tendered into evidence an office minute dated 2 August 2011 referring to a Comcare investigation regarding a review of the Siebel system at the ATO.[10] This system was routinely used by the applicant when performing her duties in the superannuation area in 2011. Attached to the minute was a list of items for review, many of which were directed to investigating means of limiting or reducing the frequency and duration of mouse-work.[10] Exhibit A1. The respondent did not seriously dispute the applicant’s evidence concerning the volume of mouse-work involved in undertaking duties on Siebel in the superannuation area. It certainly did not adduce any evidence to contradict the evidence of the applicant. Nor was any contradictory evidence led about the positioning of the mouse at the workstation when the applicant used it for her work in Siebel. The applicant’s evidence was that after performing duties on Siebel she gradually developed worsening symptoms in her right shoulder and consulted Dr Laura Reid at the Barrack Street Practice on 6 September 2011. The history given by the applicant to Dr Reid was that, two weeks prior to the consultation, her right shoulder pain had worsened again and that she was unable to work.[11] The progress notes made by Dr Reid recorded that the applicant had pain in all directions anteriorly and posteriorly over the shoulder and referred to there having been some workplace modifications but not enough. This would appear to be a reference to the interventions that were initiated on 29 August 2011 when an injury management consultant, Kate Rutherford, conducted an ergonomic workstation assessment.[12][11] Exhibit A2, p 40.[12] T5, pp 13-18. The workstation assessment report prepared by Ms Rutherford did not wholly corroborate the applicant’s evidence but it did record a tendency of the applicant’s right shoulder to roll forward when doing computer-based work. This is significant for reasons that will become apparent when the medical evidence before the Tribunal is evaluated.

Decision

Reasons for decision

In view of the insidious nature of complex regional pain syndrome, it may be that the applicant will require specialist medical input and/or other medication or treatment. However this is speculative and the Tribunal makes no finding that these were reasonably required and necessary at the time of the reviewable decision.DECISION The Tribunal is satisfied that the reviewable decision was erroneous in that it concluded that the applicant no longer suffered from the effects of a compensable condition. The Tribunal is of the view that the applicant continued to suffer from the effects of the compensable condition secondary complex regional pain syndrome. For these reasons the decision under review is set aside and the matter is remitted to the respondent to give effect to the determination of the Tribunal.

Ratio Decidendi

Legal Principle Established

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