Milevska and Comcare (Compensation) - [2017] AATA 1177

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2015/6799
GENERAL DIVISION  )

Re: Tranda Milevska
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL: Deputy President Bernard J McCabe

DATE: 5 September 2017

PLACE: Perth

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that the reference to “8 February 2017” in paragraph one of the decision is replaced with “12 December 2015”.

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

Deputy President

Milevska and Comcare (Compensation) [2017] AATA 1177 (31 July 2017)

Division: GENERAL DIVISION

File Number(s): 2015/6799
Re:Tranda Milevska
APPLICANT

AndComcare
RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe
Date:31 July 2017
Place:Perth

The reviewable decision of 8 February 2017 in relation to the Applicant’s wrist condition isset aside.

In substitution, the Tribunal decides that the Respondent is liable to pay compensation in respect of the Applicant’s wrist condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The reviewable decision is otherwise affirmed.

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

Deputy President Bernard J McCabe

CATCHWORDS

WORKER’S COMPENSATION – whether aliments constitute an injury suffered by an employee – consideration of the nature of shoulder, elbow and wrist conditions – whether applicant suffers from one or more diseases – whether the applicant’s employment has significantly contributed to or aggravated any disease(s) – whether the applicant condition(s) are an injury or injuries that arose out of or in the course of employment – decision set aside in part

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B & 14

REASONS FOR DECISION

Deputy President Bernard J McCabe

31 July 2017

Ms Tranda Milevska has developed symptoms in her shoulder, elbow and wrist. She says the condition (or perhaps conditions) that produces these symptoms is connected with the work she was doing as a Centrelink employee. She has sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act). Comcare, the respondent, has denied liability under s 14 of the Act. Comcare says there is no connection – or no sufficient connection – between Ms Milevska’s condition(s) and her work.
There was some dispute over the precise details of Ms Milevska’s work practices. She was an administrative officer who performed a good deal of keyboard work and some stapling of documents. But how much?
There was also disagreement amongst the medical experts. The disagreement was partly about diagnosis, although the applicant’s counsel pointed out it was not essential that I reach a detailed view on diagnosis if I was satisfied there was a condition. The real dispute between the experts lies at the heart of this case: can repetitive activities like typing and stapling trigger symptoms in the arm and shoulder?
A debate over the cause – or existence – of repetitive or overuse injuries has been raging within the medical profession for decades. The debate is powered by different philosophies of diagnosis and treatment within the profession. Those different…

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 Milevska and Comcare (Compensation)

Details

AGLC: Milevska and Comcare (Compensation) [2017] AATA 1177
Case: [2017] AATA 1177
Decision Date: 5 September 2017

CaseChat Overview and Summary

Milevska and Comcare (Compensation) concerned a dispute over a worker's compensation claim before Deputy President Bernard J McCabe of the Administrative Appeals Tribunal. The applicant, Ms. Milevska, sought compensation from Comcare for conditions affecting her shoulder, elbow, and wrist, alleging these conditions constituted an injury or injuries that arose out of or in the course of her employment. The core of the dispute revolved around whether these ailments qualified as an injury under the relevant legislation, and if so, whether her employment had significantly contributed to or aggravated any underlying disease(s).

The Tribunal was required to determine several key legal issues. Firstly, it had to ascertain the nature of Ms. Milevska's shoulder, elbow, and wrist conditions and whether these constituted a single injury or multiple distinct injuries. Secondly, the Tribunal needed to decide if these conditions amounted to a "disease" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Finally, and crucially, the Tribunal had to determine whether Ms. Milevska's employment had significantly contributed to, or aggravated, any such disease(s), and whether any identified injury or injuries arose out of or in the course of her employment.

In its reasoning, the Tribunal considered the medical evidence presented regarding the applicant's conditions. It applied the legal principles established in case law concerning the definition of an "injury" and "disease" within the context of Commonwealth workers' compensation legislation. The Tribunal analysed the causal link between the applicant's work duties and the development or aggravation of her conditions, focusing on the requirement of significant contribution or aggravation. The Tribunal ultimately set aside its previous decision in part, indicating a nuanced finding on the compensability of the claimed conditions.

Orders