Lynette Prater and Comcare

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[2014] AATA 7  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/5168

Re

Lynette Prater

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

RM Creyke, Senior Member
Date 9 January 2014   
Place Canberra

The decision under review is set aside and in substitution the Tribunal directs that Comcare is liable to pay compensation to the applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

...................[sgn].............................

RM Creyke, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth Employees – shoulder injury – injury claimed to be sustained when lifting bags - whether injury arose out of or in the course of employment – whether notification given ‘as soon as practicable’.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 14 and 53

SECONDARY MATERIAL

Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010)

REASONS FOR DECISION

RM Creyke, Senior Member

9 January 2014   

  1. Ms Lynette Prater, born 1962, had a left shoulder injury with a claimed date of injury of 20 November 2011 for which liability for compensation was denied on 18 September 2012. That decision was affirmed on 13 November 2012. 

  2. On 15 November 2012, Ms Prater applied for review by the Tribunal.  The matter was heard in Canberra on 18 September 2013, and on 11 November 2013.

    Background

  3. At the relevant time, Ms Prater, who is 152cm tall and right-handed, was employed by COMCAR on a casual basis as a Commonwealth driver and had been in that position since May 2001. COMCAR is a body administered by the Department of Finance (agency). Generally she worked when the Australian Parliament was sitting. Ms Prater estimated she would average about 24 hours of COMCAR work a week. The figures supplied by COMCAR indicate that in the period August 2011 until July 2012 her COMCAR work was for about 20 hours a week.

  4. The car she drove was a Holden Statesman, and was an automatic. Her job involved driving members of parliament and other dignitaries, often to and from the airport, but also within Canberra. Trolleys were available at some places to assist with luggage. Generally she had to carry the person’s bags and deposit them in the boot of the car and unload them at the end of the journey.

  5. Ms Prater had a second job as a receptionist at a residential care facility.  Her duties were administrative, including typing which she did with her right hand only, as she said she was not sufficiently co-ordinated to type two–handed. She commenced working there in May 2010. Her working hours would be 5 hours daily from 9.30am in one week, and six hours daily from 9.30am in the alternate week. Ms Prater’s evidence was that she had no injuries arising out of that work.

  6. Ms Prater conceded that she had formerly suffered carpal tunnel syndrome in the right wrist with a deemed date of injury in 1989. In 2005-2006 she had suffered right leg and right hip pain which has continued.  She suffered a left ankle injury at work in November…

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Details
Case
[2014] AATA 7
Decision Date

CaseChat Overview and Summary

The applicant, Ms Lynette Prater, sought a review of a decision by Comcare to refuse her a workers' compensation claim for a shoulder injury allegedly sustained in the course of her employment as a Commonwealth driver with Comcare. The matter was heard by the Administrative Appeals Tribunal in Canberra. The central issue was whether Ms Prater's left shoulder injury arose out of or in the course of her employment, and if so, whether Comcare was liable to pay compensation for her injury. A secondary issue was whether Comcare's liability was negated because Ms Prater did not notify Comcare of her injury as soon as practicable.

The Tribunal found that Ms Prater's pain was due to a partial tear in the supraspinatus tendon in her shoulder, but the cause of the tear was in dispute. Ms Prater claimed the injury occurred when she lifted heavy boxes for a senior Minister on 20 November 2011. Comcare argued that Ms Prater did not sustain a shoulder injury in the manner or at the time alleged. The Tribunal accepted that Ms Prater was required to lift bags weighing up to 32 kg as part of her duties, and that she had been medically assessed as capable of doing so. However, the Tribunal found that there was insufficient evidence to conclude that the alleged incident on 20 November 2011 caused the tear. The Tribunal also found that Ms Prater did not notify Comcare of her injury as soon as practicable, but this did not negate Comcare's liability as the injury was not work-related.

The Tribunal dismissed Ms Prater's appeal. The Tribunal found that Comcare was not liable to pay compensation to Ms Prater for her injury as it was not caused by her employment. The Tribunal also found that Comcare's liability was not negated by Ms Prater's failure to notify her injury as soon as practicable, as the injury was not work-related.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 15 November 2012, Ms Prater applied for review by the Tribunal. The matter was heard in Canberra on 18 September 2013, and on 11 November 2013.Background At the relevant time, Ms Prater, who is 152cm tall and right-handed, was employed by COMCAR on a casual basis as a Commonwealth driver and had been in that position since May 2001. COMCAR is a body administered by the Department of Finance (agency). Generally she worked when the Australian Parliament was sitting. Ms Prater estimated she would average about 24 hours of COMCAR work a week. The figures supplied by COMCAR indicate that in the period August 2011 until July 2012 her COMCAR work was for about 20 hours a week. The car she drove was a Holden Statesman, and was an automatic. Her job involved driving members of parliament and other dignitaries, often to and from the airport, but also within Canberra. Trolleys were available at some places to assist with luggage. Generally she had to carry the person’s bags and deposit them in the boot of the car and unload them at the end of the journey. Ms Prater had a second job as a receptionist at a residential care facility. Her duties were administrative, including typing which she did with her right hand only, as she said she was not sufficiently co-ordinated to type two–handed. She commenced working there in May 2010. Her working hours would be 5 hours daily from 9.30am in one week, and six hours daily from 9.30am in the alternate week. Ms Prater’s evidence was that she had no injuries arising out of that work. Ms Prater conceded that she had formerly suffered carpal tunnel syndrome in the right wrist with a deemed date of injury in 1989. In 2005-2006 she had suffered right leg and right hip pain which has continued. She suffered a left ankle injury at work in November 2006, exacerbated by a fall in April 2007. Ms Prater was initially off work for three weeks in April 2007. She was also involved in a motor vehicle accident while at work on 23 July 2007, when her car was hit on the driver’s side. She said she only suffered bruising and a soft tissue injury to her right elbow on that occasion. She was certified unfit for work from 23 July 2008 for three days following that injury. On 9 November 2011 Ms Prater injured her left wrist while moving house, but said she had used liniment and her wrist recovered within two to three days. The injury did not prevent her working at the residential care facility. She was not working for COMCAR between 23 October 2011 and 20 November 2011. The injury in this application was claimed to have occurred on 20 November 2011. At about 10.50pm Ms Prater was scheduled to pick up a senior Minister from Fairbairn Air Force Base, Canberra and to transport him to Parliament House. According to Ms Prater, the Minister had with him six to eight small metal cases about 400mm wide and 300mm high. They were very heavy. The COMCAR was parked some 50 metres away from the pickup point and up a short incline. Ms Prater said after carrying the first case, which she found heavy, she moved the remainder using a trolley. She then loaded the cases into the boot of the car. Her evidence was that during the loading and unloading most of the weight was being borne by her left hand and arm. She unloaded the boxes onto a trolley when she reached Parliament House.

Evidence

Evidence Before The Court

When asked why she had not earlier made a workers’ compensation claim, Ms Prater said ‘I couldn’t afford to stop working; if I don’t work I don’t get paid; if I don’t get paid I can’t pay my rent’. She also said that another reason for not putting in a claim was:Because I didn’t want to go down a compensation claim after the stress of the last time of a claim. I just don't like to make waves, I don’t like to cause trouble, for the want of a better word, I just hoped that my arm would get better and I wouldn’t have to be going through what I’m going through today. Following lodgement of her workers’ compensation claim, Ms Prater was told she was unable to work until her injury was better. Ms Prater agreed in evidence that she had made previous workers’ compensation claims for carpal tunnel syndrome in 1990 and for plantar fasciitis in 2007. Medical evidence In the ‘Medical History’ element of the application to be a COMCAR driver, Ms Prater had answered ‘No’ to questions concerning previous trouble/pain with ‘shoulders’, ‘elbows/wrists/hand’ and ‘ankles/feet’. She acknowledged these answers were incorrect. The medical practitioner conducting the medical examination did not detect any abnormalities in these regions and pronounced her ‘fit’ for the position. Ms Prater certified that on 15 August 2008 she been trained in correct lifting and carrying techniques and procedures in relation to clients’ baggage. Dr Geoffrey Stubbs Dr Geoffrey Stubbs, orthopaedic surgeon, reported to Ms Prater’s general practitioner, Dr Mohan Mirpuri on 2 July 2012, that Ms Prater had osteoarthritis of the left shoulder, confirmed on CT scan. An ultrasound showed subacromial subdeltoid bursitis, which as he said ‘is just the common point of lots of different shoulder problems’. However, he hypothesised ‘an impingement syndrome secondary to subacromial spurring’, possibly associated with ‘some kind of supraspinatus damage, possibly even a high grade partial thickness tear which would benefit from surgical intervention’. At the hearing, Dr Stubbs said he saw Ms Prater once only on 2 July 2012 for about fifteen minutes. He said he had no memory of any suggestion on that occasion that the tear in Ms Prater’s shoulder was work-caused. He said following the report of the arthrogram on 26 July 2012 he conceded there was a partial tear and that this can follow injury, and could be the source of Ms Prater’s pain, but he could not say whether the events of 20 November 2011 were causal. He denied that the minor wrist injury Ms Prater said occurred on 9 November 2011 could have caused the tear and the radiating pain in July 2012. Nor did he recall any discussion of pain radiating from the wrist to the arm and shoulder. He said that if Ms Prater had arthritis that would be another source of pain in the shoulder. He conceded in cross-examination that repetitive activities can cause a shoulder disorder of the kind suffered by Ms Prater, and this was a frequent cause of injury in workers’ compensation claims. He also said it was common for right-handed people to have repetitive injuries in the left shoulder. He said it was possible but not probable that repetitive activity was the cause of Ms Prater’s shoulder problems. That repetitive activity may have been repetitive arm lifting such as the repeated lifting of the heavy boxes in November 2011, and this was the most likely cause in the absence of any other source of the pain. In his view, Ms Prater was young to have osteoarthritis and hence wear and tear was the more likely cause.Dr Mohan Mirpuri

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issues identified were: ·Whether Ms Prater’s left shoulder injury arose out of or in the course of her employment (Act section 5A(1));·Whether Comcare is liable to pay compensation to Ms Prater for her injury (Act section 14);·Whether Comcare’s liability is negated because Ms Prater did not notify Comcare of her injury ‘as soon as practicable’ (Act section 53).ConsiderationWhether Ms Prater’s left shoulder injury arose out of or in the course of her employment (Act section 5A(1)) The Comcare decision was that Ms Prater suffered a tear to the left supraspinatus tendon. This diagnosis was not made in the first instance. Dr Mirpuri’s initial medical opinion in February 2012 was that Ms Prater had a bursitis or inflammation of the shoulder joint. This diagnosis followed the results of a plain x-ray on 20 February 2012 and a guided cortisone injection that day. It was not until the arthrogram conducted on 26 July 2012 that a partial tear in the supraspinatus tendon was identified, a diagnosis then accepted by Ms Prater, Dr Stubbs and Dr Mirpuri. The Tribunal accepts this diagnosis and finds that Ms Prater’s pain was due to a partial tear in the supraspinatus tendon in her shoulder. The issue is what caused that partial tear. Ms Prater claims that her injury occurred on the evening of 20 November 2011 when she was lifting what she claimed were multiple heavy boxes for a senior Minister when she transported him from Fairbairn Airport to Parliament House, Canberra. She said she recalled experiencing a twinge in her wrist on the occasion. Comcare alleges that Ms Prater did not sustain a shoulder injury while working for the agency on 20 November 2011, or in the manner alleged, or at all. There is no question that Ms Prater was working for COMCAR on 20 November 2011. Her shift was from 3.30pm until midnight. Nor is there any question that Ms Prater’s duty statement for her COMCAR role listed as a ‘core requirement’, ‘Lifting bags including into, and out of boot of vehicles’. There is a statement in the Medical Assessment form completed by each COMCAR driver annually, dated 6 September 2011, that: ‘The examinee is deemed unfit for driving duties if restrictions are imposed that limit them to lifting items less than 23 kg’. An earlier version of the form, dated 8 October 2009, stated ‘The examinee is deemed unfit if they are unable to lift to a weight of a maximum of 32 kilograms per bag’. The 2011 Form also notes ‘As a guide current airline baggage restrictions are: 23 kg economy domestic; 30 kg business domestic for checked baggage’. Ms Prater is below average height. However, she was required, as a core component of her work, to lift in and out of the boot of the COMCAR vehicle bags weighing up to 32 kg. In both 2009 and 2011 Ms Prater was assessed as ‘Fully fit’ following her annual medical assessment which indicates she had been medically assessed as capable of doing so. She had also been trained in the correct method for lifting bags in and out of a boot.