McCracken and Comcare (Compensation)

Case [2021] AATA 4819

McCracken and Comcare (Compensation) [2021] AATA 4819 (24 December 2021)

Division:GENERAL DIVISION

File Number(s): 2020/2895      

Re:Nasreen McCracken

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:24 December 2021

Place:Canberra

The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act1975.

.

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

Senior Member Linda Kirk

Catchwords

WORKERS’ COMPENSATION – whether the applicant suffered an ailment or an aggravation of an injury for the purposes of section 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 resulting in disease as defined by section 5B(1)(b) of the Act – whether Applicant’s employment contributed, to a significant degree, the aggravation of the ailment such that she has a ‘disease’ under s 5B(1) of the SRC Act – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)

Cases

Campion and Comcare [2021] AATA 4310
Cavanagh and Comcare [2021] AATA 499
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166
Comcare v Sahu-Kahn (2007) 156 FCR 536
Comcare v Stefaniak [2020] FCA 560
Commonwealth and Snell [2019] 269 FCR 18
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 35 ALR 369
De Tarle and Comcare [2021] AATA 94
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fletcher and Comcare [2015] AATA 430
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Knox and Comcare [2019] AATA 2196
Martin and Comcare [2021] AATA 2455
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Millar and Comcare [2019] AATA 4973
Portors v Comcare [2018] FCA 914
Priestly and Comcare [2019] AATA 5456
Reardon and Comcare [2015] AATA 360
Rutledge and Comcare [2011] AATA 865
Stefaniak and Comcare [2019] AATA 1866
Su v Comcare [2011] AATA 934
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Whitlock and Comcare [2020] AATA 1353
Williamson and Comcare [2019] AATA 4774
Wood and Comcare [2019] AATA 981
Wuth and Comcare [2020] AATA 3625

REASONS FOR DECISION

Senior Member Linda Kirk

24 December 2021

APPLICATION FOR REVIEW

  1. Nasreen McCracken (‘the Applicant’) was born on 16 December 1964. She commenced employment with the Department of Defence (‘the Department’) in July 1986.[1]  She is currently employed by the Department as an APS 1 mail/triage officer.[2]

    [1] Exhibit A1, [1].

    [2] Exhibit R1, T17, 39.

  2. On 4 July 2011 the Applicant lodged a workers’ compensation claim for bilateral carpal tunnel syndrome which she reported to have first noticed on 3 November 2010 and for which she first sought treatment on 26 November 2010.[3]  On 25 August 2011, the Respondent accepted the Applicant’s…

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Details
AGLC
McCracken and Comcare (Compensation) [2021] AATA 4819
Case
[2021] AATA 4819
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the Applicant against Comcare, concerning a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The Applicant sought compensation for bilateral carpal tunnel syndrome, alleging that her employment had contributed to an ailment or an aggravation of an injury. The dispute centred on whether the Applicant's employment had contributed to a significant degree to the aggravation of a non-work-related ailment, thereby constituting a 'disease' as defined by the Act.

The Tribunal was required to determine three key issues: first, whether the Applicant suffered an ailment; second, whether that ailment was contributed to, to a significant degree, by her employment with the Department; and third, whether the Applicant suffered an aggravation of a non-work-related ailment which was contributed to, to a significant degree, by her employment. The Applicant's employment history, which included extensive periods of repetitive data entry, was presented as evidence.

In its reasoning, the Tribunal referred to the definitions of 'ailment' and 'disease' within the SRC Act and relevant case law. It noted that for an aggravation of a non-work-related condition to be compensable, there must be evidence of a physiological change to the condition caused by employment, not merely the experience of pain or symptoms. The Tribunal found no evidence of such a physiological change in the Applicant's bilateral carpal tunnel syndrome. Furthermore, even if the experience of pain at work from an underlying ailment were sufficient, the medical evidence did not support a finding that the Applicant's symptoms were significantly contributed to by her work.

Consequently, the Tribunal was not satisfied that the Applicant had suffered an 'injury' for which Comcare was liable to pay compensation under section 14(1) of the SRC Act. The decision under review was affirmed.

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

The issues before the Tribunal are as follows:1)Did the Applicant suffer an ailment?2)Was the ailment contributed to, to a significant degree, by her employment with the Department?3)Did the Applicant suffer an aggravation of a non-work-related ailment which was contributed to, to a significant degree, by her employment? EVIDENCE BEFORE THE TRIBUNALApplicant’s employment The Applicant commenced employment as a Data Processing Officer with the Department in July 1986.[11] Her duties involved ‘repetitive typing all day’ with two breaks of 30 minutes duration. She worked in this role for one year and then took maternity leave.[12] [11] Exhibit A1, [1]-[2].[12] Ibid, [2]. When the Applicant returned to work in 1988, she worked in another area which did not involve data entry.[13] She took maternity leave again and returned to work in 1990 and worked in a role that did not require data entry.[14] The Applicant took leave from work for four years when she accompanied her spouse overseas.[15][13] Exhibit A2, 1.[14] Ibid.[15] Ibid. When the Applicant returned to work in 1996, she moved to a different role which did not involve data entry.[16] After returning to work following maternity leave in 2005, the Applicant started doing data entry work. She was raising files and sending them to Archives. The work was repetitive.[17][16] Ibid. [17] Ibid. In 2009, the Applicant moved to Brindabella Park for six weeks. She was required to scan files and move them onto Objective. This involved a lot of keyboard use and was repetitive.[18][18] Ibid. When she returned to Campbell Park, she was asked to create files for Defence Force Recruitment (DFR). She was told that her work was being monitored and she ‘felt pressured and very stressed.’[19] Her work duties at that time involved a lot of repetitive keying with both hands and not much mouse work. [19] Ibid. In 2013, the Applicant moved to work at Brindabella Park. In 2015, she moved to Royal Military College (RMC) where she was required to do repetitive typing for the Pass Office. She scanned and dragged all the documents into Objective. There was a back log of four months which she completed. She was doing repetitive frequent keying using both hands. She continued those duties, initially without experiencing symptoms.[20][20] Exhibit R4, 2. In 2016, after nine months at RMC, she moved to Campbell Park where she was part of the Pass Office team. One of her duties was to scan documents and drag them onto Objective. First claim for bilateral carpal tunnel syndrome In late 2010 the Applicant developed tingling in the fingers of both hands. On 1 December 2010, the Applicant attended Kambah Medical Centre and saw Dr Anil Goel. He referred her to Dr Andrew Hughes for nerve conduction studies with the history of tingling and paraesthesia in the right hand.[21] [21] Ibid, 3. On 20 December 2010 upper limb nerve conduction studies of the Applicant were reported to show evidence of bilateral median nerve lesions at the level of the wrist, moderate to severe in severity on the right and moderate on the left.[22][22] Ibid, 3.

Decision

Reasons for decision

The Tribunal is not satisfied that the Applicant suffered an ‘injury’ for which the Respondent is liable to pay her compensation under s 14(1) of the SRC Act.DECISION The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act1975.

Ratio Decidendi

Legal Principle Established

In relation to whether in 2019 the Applicant suffered an aggravation of her non-work-related carpal tunnel syndrome there must be evidence, not just that she has experienced pain or symptoms from the underlying injury or underlying ailment, but that there has been an accompanying physiological change to the condition that was caused by the employment: Whitlock and Comcare.[57] There is no evidence of a physiological change in the Applicant’s bilateral carpal tunnel syndrome. If the Tribunal finds that experience of pain while at work from a non-work-related underlying ailment can be sufficient to make out an aggravation case, in the Applicant’s circumstances the medical evidence does not support a finding that those symptoms were significantly contributed to by work.[57] [2020] AATA 1353.CONSIDERATION AND REASONS The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.1) Did the Applicant suffer an ‘ailment’? Section 4 of the SRC Act defines an ‘ailment’ as ‘… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ In Kennedy Cleaning Services Pty Ltd v Petkoska,[58] Gleeson CJ and Kirby J stated: The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.[58] (2000) 200 CLR 286 at [40]. The meaning of ‘disease’ was considered by the Federal Court in Comcare v Mooi.[59] At the time of the decision, s 5B had not been enacted and the definitions of ‘disease’ and ‘ailment’ were found in s 4(1) of the SRC Act. Those definitions were in terms consistent with their current definitions. Drummond J began by noting:By s 4, the term ‘injury’ means physical or mental injury other than disease, while the term ‘disease’ means any physical or mental ailment, disorder, defect or morbid condition. The expression ‘ailment’ is used in s 4 of the Act as a synonym for the term ‘disease’. It is apparent from the exhaustive meaning given by s 4 to the term ‘ailment’, and from the ordinary meaning of that word – ‘a morbid affection of the body or mind; indisposition: a slight ailment (The Macquarie Dictionary) – that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.[60][59] (1996) 69 FCR 439.[60] Ibid at [10]. Referring to the ordinary meanings of the word ‘disease’ as well as the meanings given in medical dictionaries, Drummond J concluded:Only conditions involving a disturbance of the normal functions of body or mind are within the term ‘disease’, as defined, and thus ‘injuries’ for the purposes of s 14(1) of the Act.[61][61] Ibid at [16].