Lolic and Comcare (Compensation)

Case [2019] AATA 3944

Lolic and Comcare (Compensation) [2019] AATA 3944 (26 September 2019)

Division:GENERAL DIVISION

File Number:          2016/0989

Re:Ms Indira Lolic

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, AO Member

Date:26 September 2019

Place:Melbourne

The Tribunal sets aside the decision under review and decides that Comcare is liable to pay compensation for Ms Lolic’s injuries, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal remits the matter to Comcare for reconsideration in accordance with this decision.

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

Ms Anna Burke AO, Member

Catchwords

WORKER’S COMPENSATION – public servant – denial of liability – whether injury is work related – conflicting medical evidence – decision set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Australian Postal Corporation v Burch [1998] FCA 944

Canute v Comcare (2006) 226 CLR 535

Commonwealth of Australia v Kathleen Beattie, Re (1981) 53 FLR 191

Cross and Comcare (Compensation) [2018] AATA 52

Comcare v Mooi  [1996] FCA 1587; (1996) 69 FCR 439

Comcare v Power  [2015] FCA 1502; (2015) 238 FCR 187

Comcare v Reardon  [2015] FCA 1166

Comcare v Sahu-Khan  [2007] FCA 15; (2007) 156 FCR 536

Gait and Comcare (Compensation) [2018] AATA 4282

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2011] AATA 886

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Prain v Comcare  [2016] AATA 459

Reardon and Comcare [2015] AATA 360

Schodde and Comcare (Compensation) [2015] AATA 598

Su v Comcare [2011] AATA 934

REASONS FOR DECISION

Ms Anna Burke, AO Member

  1. The application by Ms Indira Lolic is for review of a decision made by a Review Officer of the Respondent, Comcare, on 14 January 2016. That decision affirmed a Determination dated 28 October 2015, which found that the Respondent had no liability to pay compensation to the Applicant in respect of a soft tissue injury: right wrist, tenosynovitis shoulder and neck affecting the arms/hand (wrists), neck and both shoulders pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRC Act”).

  2. Ms Lolic commenced work with the Department of Human Services (DHS) on 4 June 2007 as a full time Customer Services Officer and continues in that role on reduced hours. Ms Lolic works in the Participation Support Team where she takes, on average, 30 inbound calls per day from Centrelink clients in respect of their participation mutual obligations. Centrelink clients call to advise about their non-attendance at a required appointment with Centrelink, a prospective employer, a training course or the like. The calls involve Ms Lolic interviewing the client to ascertain the facts about their non-attendance, to establish if they have a valid reason and then to determine the consequences of their non-compliance. The role involves receiving the call through a head set and typing throughout the interview to complete the required application.  Post interview there may be additional…

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AGLC
Lolic and Comcare (Compensation) [2019] AATA 3944
Case
[2019] AATA 3944
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Lolic against Comcare's denial of liability for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The dispute centred on whether Ms Lolic's degenerative cervical spine condition, which caused symptoms of cervical radiculopathy, was an injury or an ailment that was contributed to, to a significant degree, by her employment. Comcare had argued that Ms Lolic was suffering from a degenerative condition that had worsened but was not caused or aggravated by her work.

The legal issues before the Tribunal were whether Ms Lolic had suffered an "injury simpliciter" or a "disease" within the meaning of the SRC Act, and if so, whether her employment had contributed to it to a significant degree. Specifically, the Tribunal had to determine if Ms Lolic's repetitive mouse and keyboard use constituted an injury to her wrist, shoulder, and neck, or if her pre-existing degenerative spinal condition, which was accepted as an ailment, had been aggravated by her work.

The Tribunal accepted that Ms Lolic suffered from a degenerative cervical spine condition, evidenced by MRI scans, and that she was a credible witness. While acknowledging the degenerative nature of the condition and the lack of evidence that her work caused the underlying disease, the Tribunal found that her employment likely aggravated this pre-existing ailment. The Tribunal also considered the possibility of a functional element to some of her symptoms, as noted by an expert. Ultimately, the Tribunal set aside Comcare's decision.

The Tribunal ordered that Comcare is liable to pay compensation to Ms Lolic for her injuries under section 14 of the SRC Act. The matter was remitted to Comcare for reconsideration of compensation in accordance with sections 16 and 19 of the SRC Act, specifically in respect of reasonable medical expenses and incapacity for work.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal remits the matter to Comcare to assess Ms Lolic’s compensation in accordance with sections 16 and 19 of the SRC Act, in respect of reasonable medical expenses and incapacity for work. CONCLUSION The Tribunal sets aside the decision under review and decides that Comcare, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988, is liable to pay compensation for Ms Lolic’s injuries. The Tribunal remits the matters to Comcare for reconsideration in accordance with this decision.

Ratio Decidendi

Legal Principle Established

Counsel for Comcare contended that all that the evidence before the Tribunal showed was that Ms Lolic is suffering a degenerative condition which has simply become worse. It has not been made worse by her employment.CONSIDERATION AND FINDINGS There is no dispute that Ms Lolic suffers from a degenerative cervical spine condition, as evidenced by the MRI scans, which show a disc bulge at C5/6, and which contacts with the nerve roots but does not compress. There was no evidence led to the effect that Ms Lolic’s work had caused the underlying condition. All the medical experts opined that it was a degenerative condition. The Tribunal, having considered the considerable medical evidence in this matter, accepts that the evidence indicates that the clinical picture appears to be that of cervical radiculopathy. On the basis of the evidence before it, the Tribunal finds that at the date of claim, Ms Lolic was suffering from a pre-existing spinal degenerative disease that satisfies the definition of an ailment in section 4(1) of the SRC Act, in that it is a morbid condition. The Tribunal notes that there are inconsistencies in the presentation of Ms Lolic’s overall medical condition. However, the Tribunal concurs with Associate Professor Buzzard’s opinion that “[t]he situation is not, however, straightforward on the grounds that she has a variety of other symptoms, which may have some functional element to them”. The Tribunal finds Ms Lolic to be a credible and reliable witness, who did not appear to be embellishing or exaggerating her pain or situation. The dispute between the parties is whether Comcare is liable to pay Ms Lolic compensation in accordance with section 14 of the SRC Act. Comcare originally denied her claim on the basis that the claimed conditions were not contributed to, to a significant degree, by Ms Lolic’s employment with DHS. Whilst Ms Lolic’s original claim stated that the chain of events that led to her illness was “queue line getting longer, usual data entry”, in her statement to the Tribunal Ms Lolic identifies her injury as being a result of the way she was holding her mouse and using her keyboard for repetitive movements throughout the workday over the years. The evidence before the Tribunal was that Ms Lolic originally sought treatment in 2013 for a sore right hand, shoulder and neck. This was originally diagnosed by Dr Navani as a soft tissue injury, subject to further examination. Ms Lolic undertook extensive hand therapy treatment for this condition for two years, with no resolution. It was not until 2015 that an MRI scan was finally performed, which demonstrated that Ms Lolic had a degenerative cervical spinal condition associated with a disc bulge at C5/6. The Tribunal next considered the fundamental argument put forward by the parties that Ms Lolic’s had or had not suffered “injury simpliciter” or a disease in accordance with the SRC Act. Mr Ferwerda contended that Ms Lolic had, over a period of time, sustained an injury (for the purposes of section 5A(1)(b) of the SRC Act) to her wrist, shoulder and neck arising out of the course of employment with DHS by virtue of her increased repetitive mouse and keyboard work. Additionally, he argued Ms Lolic’s underlying degenerative condition was an ailment (for the purpose of section 5A(1)(a) and 5B of the SRC Act and as defined in section 4) and had been aggravated by her work. Therefore, her ailment had been contributed to a significant degree by her employment with DHS.