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 40Treloar 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
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.
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.
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.
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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- LHHL and Comcare (Compensation) [2018] AATA 3272
- Case
- [2018] AATA 3272
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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