Mates and Comcare (Compensation) - [2019] AATA 1135

Mates and Comcare (Compensation) [2019] AATA 1135 (6 June 2019)
Division:General Division
File Number: 2016/6983
Re: Lois Mates
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:6 June 2019
Place:Melbourne

The Tribunal affirms the reviewable decision of the Respondent dated 9 November 2016 to deny liability to pay compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 in relation to the Applicant’s claimed condition.
.......... .....[sgd]....................................
Member
Catchwords
WORKERS COMPENSATION - asymptomatic right-sided lateral epicondylitis – condition became symptomatic - no aggravation due to workplace incident – no liability under s.14 – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Administrative Appeals Tribunal Act 1975
Cases
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 593
Comcare v Reardon (2015) FCA 1166
REASONS FOR DECISION
Member R West
6 June 2019
Background
The Applicant commenced employment with the Department of Human Services (Department) on 10 October 2005 as a service officer on a permanent part-time basis. She commenced full-time employment approximately three years later.
On 16 February 2015, the Applicant was employed by the Department as an APS 3 Service Officer at the Waverley Gardens Medicare branch. Her duties comprised general office administration tasks, including inputting data into a computer system and photocopying, and over the counter customer service, including processing customer enquiries requiring typing and the use of a mouse.
On 16 February 2015, the Applicant claims to have suffered an injury causing pain in her right forearm and elbow when she reached out to receive documents from a customer while performing her customer service duties (Incident).
On 17 February 2015 the Applicant lodged an incident report in relation to the Incident.[1]
[1] T10.2.
The Applicant consulted her general practitioner, Dr Skinner, on 17 February 2015 and he diagnosed that the Applicant had sustained an extensor musculotendinous strain/tear in the right forearm.[2] The Applicant continued to attend for work.
[2] T20 at p.120.
On 23 February 2015, the Applicant again consulted Dr Skinner who noted that the Applicant had complained that her right elbow was still sore. He noted tenderness on the lateral epicondyle and diagnosed the Applicant as suffering from acute musculotendinous strain/tear right elbow forearm extensor origin. He recommended that the Applicant wear a brace, avoid heavy lifting/forceful use of right arm and that she have 10 minute breaks from typing each hour.[3]
[3] T6.
Between 23 February 2015 and 14 October 2015 the Applicant underwent laser acupuncture treatment for her injury.
In June 2015 the Applicant transferred to the Springvale Medicare and Centrelink Service Centre where she has continued to work as an APS 3 Service Officer, subject to restrictions.
On 14 June 2016, the Applicant lodged a workers compensation claim[4] in relation to tendonosis and tear of the right extensor with a date of injury of 16 February 2015 (Claim).
[4] T9.
A delegate of the Respondent rejected the Claim by determination dated 17 August 2016[5] (Determination). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mates and Comcare (Compensation)

Details

AGLC: Mates and Comcare (Compensation) [2019] AATA 1135
Case: [2019] AATA 1135
Decision Date: 6 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between an applicant and Comcare concerning a claim for workers' compensation. The applicant alleged that she sustained an injury causing pain in her right forearm and elbow during an incident at work on 16 February 2015, which she claimed resulted in acute musculotendinous strain/tear of the right elbow forearm extensor origin, later diagnosed as right-sided lateral epicondylitis.

The central legal issue before the Tribunal was whether the applicant's condition was contributed to, to a significant degree, by her employment with the Department of Human Services, thereby establishing liability for compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant's initial medical consultations indicated a strain or tear, and subsequent medical advice recommended rest and avoidance of forceful use of the right arm.

The Tribunal affirmed the delegate's reviewable decision that denied liability. The reasoning applied was that while the applicant suffered from right-sided lateral epicondylitis, the condition was not found to be significantly contributed to by her employment. This aligns with the principle that for a condition to be compensable under section 14, there must be a demonstrable causal link between the employment and the injury or aggravation of an ailment. The Tribunal's decision was based on the evidence presented, which did not establish the necessary degree of contribution from the workplace.

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

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal affirms the reviewable decision of the Respondent dated 9 November 2016 to deny liability to pay compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 in relation to the Applicant’s claimed condition........... .....[sgd]....................................MemberCatchwordsWORKERS COMPENSATION - asymptomatic right-sided lateral epicondylitis – condition became symptomatic - no aggravation due to workplace incident – no liability under s.14 – decision under review affirmedLegislationSafety, Rehabilitation and Compensation Act 1988Administrative Appeals Tribunal Act 1975CasesOgden Industries Pty Ltd v Lucas (1967) 116 CLR 593Comcare v Reardon (2015) FCA 1166REASONS FOR DECISIONMember R West6 June 2019Background The Applicant commenced employment with the Department of Human Services (Department) on 10 October 2005 as a service officer on a permanent part-time basis. She commenced full-time employment approximately three years later. On 16 February 2015, the Applicant was employed by the Department as an APS 3 Service Officer at the Waverley Gardens Medicare branch. Her duties comprised general office administration tasks, including inputting data into a computer system and photocopying, and over the counter customer service, including processing customer enquiries requiring typing and the use of a mouse. On 16 February 2015, the Applicant claims to have suffered an injury causing pain in her right forearm and elbow when she reached out to receive documents from a customer while performing her customer service duties (Incident). On 17 February 2015 the Applicant lodged an incident report in relation to the Incident.[1][1] T10.2. The Applicant consulted her general practitioner, Dr Skinner, on 17 February 2015 and he diagnosed that the Applicant had sustained an extensor musculotendinous strain/tear in the right forearm.[2] The Applicant continued to attend for work.[2] T20 at p.120. On 23 February 2015, the Applicant again consulted Dr Skinner who noted that the Applicant had complained that her right elbow was still sore. He noted tenderness on the lateral epicondyle and diagnosed the Applicant as suffering from acute musculotendinous strain/tear right elbow forearm extensor origin. He recommended that the Applicant wear a brace, avoid heavy lifting/forceful use of right arm and that she have 10 minute breaks from typing each hour.[3][3] T6. Between 23 February 2015 and 14 October 2015 the Applicant underwent laser acupuncture treatment for her injury. In June 2015 the Applicant transferred to the Springvale Medicare and Centrelink Service Centre where she has continued to work as an APS 3 Service Officer, subject to restrictions. On 14 June 2016, the Applicant lodged a workers compensation claim[4] in relation to tendonosis and tear of the right extensor with a date of injury of 16 February 2015 (Claim).[4] T9. A delegate of the Respondent rejected the Claim by determination dated 17 August 2016[5] (Determination). The Applicant requested a reconsideration of the Determination on 12 October 2016. On 9 November 2016 the authorised delegate of the Respondent accepted that the Applicant was suffering from an ailment, or an aggravation of an ailment, namely right sided lateral epicondylitis but found that the condition was not contributed to, to a significant degree, by her employment with the Department. The authorised delegate affirmed the Determination[6] (Reviewable Decision).[5] T24.[6] T29.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.