Mudaliar and Comcare (Compensation) - [2022] AATA 220

Mudaliar and Comcare (Compensation) [2022] AATA 220 (16 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1594
Re:Mrs Eveline MUDALIAR
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:16 February 2022
Place:Sydney

The decision under review is affirmed.
............................[SGD]............................................
Chris Puplick AM, Senior Member
CATCHWORDS
COMPENSATION - entitlement to compensation - whether employer was liable to pay compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) - whether nature of employment caused condition, injury, or illness - whether condition is a result of natural aging or constitutional predisposition - decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth).
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 14.
CASES
Balacki and Comcare [2013] AATA 768
Comcare v Martin [2016] HCA 43
Commonwealth v Beattie [1981] FCA 88
SECONDARY MATERIALS
Eleonore Herquelot, Julie Bodin, Yves Roquelaure, Catherine Ha, Annette Leclerc, Marcel Goldberg, Marie Zins, Alexis Descatha ”Work-related risk factors for lateral epicondylitis and other cause of elbow pain in the working population” (2013) 56(4) Am J Ind Med 400-9
Karen Walker-Bone , Keith T Palmer, Isabel Reading, David Coggon, Cyrus Cooper “Occupation and epicondylitis: a population-based study”, (2012) 1(2) Rheumatology (Oxford). 305-10
Rahman Shiri MD, MPH, PhD (Senior Researcher) EiraViikari-Juntura MD, PhD (Research Professor): “Lateral and medial epicondylitis: Role of occupational factors”, (2011) 25(1) Best Practice & Research Clinical Rheumatology 43-57
REASONS FOR DECISION
Chris Puplick AM, Senior Member
16 February 2022
PROCEEDINGS

Mrs Eveline Mudaliar (the Applicant) commenced working for Services Australia in August 2005. In mid-June 2020 she claims that she noticed considerable pain and discomfort in both her elbows which she attributed to the nature of her employment. On 23 October 2020 she lodged a claim for compensation against Comcare (the Respondent) as the insurer for her employer.
That claim was rejected by Comcare on 18 December 2020 and that rejection was confirmed by a subsequent review of the decision on 12 March 2021.
In October 2021 the Applicant lodged an appeal with this Tribunal against that decision and the matter was heard on 1 February 2022. The hearing was conducted with the Applicant (self-represented) on the telephone and Counsel for the Respondent appearing on the Microsoft Teams Platform and in accordance with the Tribunal’s COVID19 protocols.
SUMMARY
In essence, the Applicant claims that the nature of her employment, which primarily involved using a mouse and keyboard to assemble extensive documentation[1] related to child support matters for submission to this Tribunal in the form of section 37[2] “T documents”, caused her to suffer with problems in each of her elbows.[3]
[1] Tribunal documents (T documents) at 171.
[2] Administrative Appeals Tribunal Ac 1975 (Cth).
[3] In her claim the Applicant refers to the right elbow issue as “golfer’s elbow” and the left as “tennis elbow”.
The Respondent’s basic position is that the Applicant’s condition is a result of the natural processes of aging and a “constitutional predisposition to tendinopathy”[4] in which the Applicant may indeed have…

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 Mudaliar and Comcare (Compensation)

Details

AGLC: Mudaliar and Comcare (Compensation) [2022] AATA 220
Case: [2022] AATA 220
Decision Date: 16 February 2022

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Ms. Mudaliar, against a decision by Comcare regarding her entitlement to compensation. The Applicant claimed that her employment, which involved typing and using a mouse, caused her to develop pain in her elbows and hands, which she was diagnosed with as tennis and golfer's elbow. Comcare had denied her claim, and the appeal was heard by Chris Puplick AM, Senior Member, of the Tribunal.

The central legal issue before the Tribunal was whether the Applicant's condition was caused by her employment, as required by section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), or if it was a result of natural aging or a pre-existing constitutional predisposition. The Tribunal was tasked with weighing the contradictory medical evidence and determining which claim carried greater weight.

The Tribunal acknowledged the genuine pain and discomfort experienced by the Applicant, noting her direct evidence and openness. However, the Applicant's own evidence revealed a long history of joint pain, including in her elbows, knees, and wrists, dating back to at least 2014. Medical records corroborated this history of multiple joint pains. Despite the Applicant's assertion that her employment exacerbated her condition, the Tribunal found that the evidence pointed towards her condition being a result of natural aging and a constitutional predisposition rather than being caused by her work duties.

Consequently, the Tribunal affirmed the decision under review, meaning the Applicant's claim for compensation was not upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As is common in such matters, there is medical evidence presented in support of both sets of claims and, at the end of the day, the Tribunal is required to determine which of the contradictory claims carries greater weight and to explain why it has reached such a conclusion.APPLICANT’S COMPENSATION CLAIM AND EVIDENCE In her original Worker’s Compensation Claim the Applicant provided the following information in support of her claim:Are you claiming for a psychological injury? I am not claiming for a psychological injury If claiming for a physical injury or disease, which parts of your body are affected? mainly both elbows but it affects my both hands with painWhat tasks were you doing when you were injured? my usual duty which involves typing and mousing What happened and how were you injured?had to see doctor with this constant excruciating pain on both elbows which started feeling around June this year. then I was diagnosed the tennis and golfers problem - which has incurred due to repetitive movement an resting of hands while typing and mousing.[5][5] T documents at 154. She reported that this problem was first noticed by her at 7.00 am on 11 June 2020. The Applicant (under some understandable degree of stress) gave evidence to the Tribunal by telephone and was cross-examined in detail by the Respondent’s counsel. She agreed that she had suffered from pain in her elbows for many years and indeed that she had a long history of joint pain, involving not only her elbows but also her knees and wrists. She stated that the level of pain and discomfort increased steadily over the period from mid-2020 onwards so much so that she found it difficult to undertake many of her regular household chores and activities which had, as a result, been taken over by her husband and children.[6] She agreed that when she had a break from activities the degree of pain subsided but only temporarily and that despite various forms of treatment, she had attained little relief and while the level of pain varied it remained consistently with her. She indicated that she was constantly reliant upon prescribed pain-management medication to assist her to cope on a daily basis and that sometimes the pain reached “excruciating” levels.[6] Joint Tender Bundle at 54 (entry dated 22 October 2020), The Tribunal was impressed with the directness of the Applicant’s answers and her openness about all aspects of her working environment and health-related issues.APPLICANT’S MEDICAL HISTORY TO DATE OF CLAIM In support of her claim the Applicant has submitted a number of medical reports,[7] primarily from her regular General Practitioner (Dr Thushanthi Wijeratne) and from a specialist sports physician (Dr Scott Burne).[7] These reports were before and were considered by Professor McGill in the preparation of his report. Medical records before the Tribunal indicate that in March 2014 the Applicant reported bilateral knee pains and in October 2014 multiple joint pain involving her wrists, elbows and knees.[8][8] Tender Bundle at 77-78 and 75.

Decision

Reasons for decision

While acknowledging the genuine pain and discomfort suffered by the Applicant and sympathising with the position in which she finds herself, nevertheless, that is the case in this application.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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