Nguyen and Comcare (Compensation)

Case [2023] AATA 3099

Nguyen and Comcare (Compensation) [2023] AATA 3099 (29 September 2023)

Division:GENERAL DIVISION

File Number:          2020/7539 and 2021/0287

Re:Felicia Nguyen  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member George Hallwood

Date:29 September 2023

Place:Adelaide

1. The Tribunal sets aside the reviewable decision of 12 November 2020 which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of “ganglion of dorsal scapholunate (right)” pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975. In substitution the Tribunal decides:

a) Liability is accepted to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of “ganglion of dorsal scapholunate (right)” pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975.

b) Liability is not accepted to pay compensation pursuant to s 14 of the SRC Act in respect of other injuries forming part of this claim.

2. The Tribunal affirms the reviewable decision of 14 January 2021 which denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of “Triangular Fibrocartilage Complex tear with ulnar abutment (right)” pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975.

3. The Tribunal declines to exercise its discretion to make a costs order under s 67(8) of the SRC Act.

.......................[SGD]..........................

Member Hallwood

CATCHWORDS

COMPENSATION – SRC Act s 14 – determination of liability to pay compensation – claim for “ganglion of dorsal scapholunate (right)” –whether applicant suffered a physical injury – whether a disease - whether condition contributed to, to significant degree, by applicant’s employment with ATO (SRC Act s 5B) – reviewable decision set aside

COMPENSATION – SRC Act s 14 – determination denied liability to pay compensation –claim for “Triangular Fibrocartilage Complex tear with ulnar abutment (right)” - whether applicant suffered a physical injury – whether an injury (other than a disease) (SRC Act s 5A) – reviewable decision affirmed

PROCEDURE – whether Tribunal should exercise its discretion to award costs (SRC Act s67(8) – Tribunal declines to exercise discretion to make costs order

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 62, 64(1).

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 4(8), 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 6(1), 7(7), 14, 14(1), 67.

CASES

Australian Postal Corporation v Burch (1998) 85 FCR 264; [1998] FCA 944

Browne v Dunn (1893) 6 R 67

Comcare v Reardon [2015] FCA 1166

Comcare v Sahu-Kahn [2007] FCA 15

Commonwealth of Australia v Beattie (1981) 35 ALR 369

E.M.I. (Australia) Ltd v Bes [1970] 2 NSWR 238

Federal Broom Pty Ltd v Semlitch (1964) 110 CLR 626

Gibson and Comcare (Compensation) [2021] AATA 1183

Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45 ;(2000) 200 CLR 286

Mellor v Australian Postal Corporation [2009] FCA 504

Reardon and Comcare [2015] AATA 360

Roncevich and Repatriation Commission [2005] HCA 40

Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262

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AGLC
Nguyen and Comcare (Compensation) [2023] AATA 3099
Case
[2023] AATA 3099
Decision Date

CaseChat Overview and Summary

This matter concerned appeals by Ms Nguyen against decisions by Comcare to deny liability to pay compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The appeals related to two distinct claims: one for a "ganglion of dorsal scapholunate (right)" (the Ganglion Claim) and another for a "Triangular Fibrocartilage Complex tear with ulnar abutment (right)" (the TFCC Claim). The Tribunal was required to determine whether Ms Nguyen had suffered an injury for which Comcare was liable to pay compensation.

The primary legal issues before the Tribunal were whether the conditions claimed by Ms Nguyen constituted an "injury" as defined by the SRC Act, and if so, whether they were contributed to, to a significant degree, by her employment with the Australian Taxation Office (ATO). Specifically, for the Ganglion Claim, the Tribunal considered whether it was a disease, or an aggravation of a disease, or an injury (other than a disease), or an aggravation of an injury, arising out of or in the course of her employment. For the TFCC Claim, the Tribunal examined whether it was an injury (other than a disease) that arose out of, or in the course of, her employment.

The Tribunal found that Ms Nguyen had a ganglion and a TFCC tear in her right wrist, accepting the medical evidence supporting these diagnoses. In relation to the Ganglion Claim, the Tribunal determined that it was contributed to, to a significant degree, by Ms Nguyen's employment with the ATO, considering the duration of her employment and the nature of her desk-based role involving extensive keyboard and mouse use. The Tribunal noted that while there were discrepancies in Ms Nguyen's recall of specific dates and events, these did not negate the overall causal link between her employment and the condition. The Tribunal also considered the TFCC Claim, and in its reviewable decision, affirmed the denial of liability for this claim. The Tribunal also declined to exercise its discretion to award costs.

Orders

Orders of the court

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Background

Background to the litigation

A reviewable decision dated 14 January 2021 denied liability to pay compensation for the TFCC Claim.[4] Ms Nguyen lodged an application with the Tribunal for review of the TFCC Claim decision on 20 January 2021.[5][4] Exhibit 6, ST48.[5] Exhibit 6, ST1.BACKGROUND Ms Nguyen is 45 years old and has worked with the ATO since February 2001, commencing via the Graduate Program soon after completing Law and Commerce at university in 2000. She went on to complete a Master of Taxation while working with the ATO and she is now employed as a Compliance Officer Executive Level 1 (EL1).[6] [6] Exhibit 1, A1. Ms Nguyen’s roles at the ATO have largely been desk based, making phone calls and conducting research, then recording results on the computer using a keyboard and mouse. Ms Nguyen has a history of pain in her right wrist dating back to July 2013 which she has said was caused by typing and use of the mouse in the workplace. Her workplace has provided accommodations for her wrist pain.[7] [7] Exhibit 6, ST4. In relation to both claims currently before the Tribunal, the relevant claim forms identify 8 August 2014 as the date on which the Applicant first noted symptoms. Ms Nguyen’s description of the cause of her injury is largely the same for both the Ganglion Claim and the TFCC Claim. Below is the description from the TFCC Claim:“these conditions resulted overtime [sic] from excessive use of keyboard and mouse and prolonged period of sitting down at work… my role… involves sitting down in front of the computer for at least 7 hours and 21 mins per day with lots of typing and mouse work. This put a lot of pressure on my right wrist, medical test shows tearing of the radial margin of the TFCC and associated mild sclerosis and oedema in the adjacent lunatere [sic] my right wrist. These injuries cause on going and constant pain in my right wrist”. [8] [8] Exhibit 6, ST3, pp10-11.THE ISSUES It is not in dispute that Ms Nguyen has a ganglion and also a TFCC tear in right wrist. The Tribunal notes that the Respondent is also not disputing that the Applicant had provided written notice of her injury as soon as practicable after becoming aware of it. The key issue in this matter is whether the Applicant suffered an injury resulting in incapacity for work or impairment for which Comcare is liable to pay compensation under s 14 of the SRC Act. This may be for either or each of the Ganglion Claim or the TFCC Claim. The Ganglion Claim The Ganglion Claim requires consideration of:(a)Whether the Ganglion is a disease, or an aggravation of a disease, contributed to, to a significant degree by Ms Nguyen’s employment with the ATO; or(b)Whether the Ganglion is an injury (other than a disease), that arose out of, or in the course of, Ms Nguyen’s employment with the ATO; or(c)Whether the Ganglion is an aggravation of an injury (other than a disease), that arose out of, or in the course of, Ms Nguyen’s employment with the ATO, whether or not that injury arose out of, or in the course of, Ms Nguyen’s employment.The TFCC Claim

Evidence

Evidence Before The Court

Section 6(1) of the SRC Act relevantly provides:Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:[…](b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or[…]EVIDENCE The following documents were admitted into evidence:(a)The Applicant’s evidence as contained in the “Parties’ agreed bundle of documents for hearing” related to the Ganglion Claim (Exhibit 1);(b)The Respondent’s evidence as contained in the “Parties’ agreed bundle of documents for hearing” related to the TFCC Tear Claim (Exhibit 2);(c)Miscellaneous evidence as contained in the “Parties’ agreed bundle of documents for hearing” (Exhibit 3);(d)Parties agreed summonsed documents as contained in the “Parties’ agreed bundle of documents for hearing” (Exhibit 4);(e)248 pages of T-Documents (Exhibit 5);(f)211 pages of Supplementary T-Documents (Exhibit 6);(g)Leave records pertaining to the Applicant from 2014 to March 2021 (Exhibit 7);(h)Extracts from AMA Guides relating to causation of TFCC tears and to ganglions (Exhibit 8); and(i)Letter from Dr Sood to Dr Paul dated 2 March 2022 (Exhibit 9). The following witnesses provided oral evidence at the hearing:(a)the Applicant (via MS Teams); (b)Dr Aman Sood, orthopaedic surgeon (via MS Teams);(c)Mr Wayne Tripp, a director at ATO (via MS Teams);(d)Dr Loretta Reiter, rheumatologist (via MS Teams). Ms Margaret Whelan was listed to appear for the Respondent; however, the Applicant told the hearing that this witness would not be required for cross-examination and the Respondent agreed not to call this witness noting that implications could be drawn in relation to Ms Whelan’s witness statement contained in evidence at Exhibit 6. The Tribunal accepts Ms Whelan’s statement as the uncontested evidence she would have given had she appeared before the Tribunal. The parties each filed a statement of facts, issues and contentions relating to both of the matters before the Tribunal. During the closing submissions of the Respondent’s counsel, the Applicant’s counsel raised the rule in Browne v Dunn in relation to potential for inferences to be drawn from closing statements that the Applicant had not been afforded the opportunity to respond to. This issue is also considered by the Tribunal. The Tribunal is satisfied on the basis of medical evidence and imaging that Ms Nguyen has a ganglion and a TFCC tear in her right wrist. While there appears to be some medical opinion in recent times that questions the diagnosis of the ganglion, the medical witnesses called to appear before the Tribunal were in accord in relation to the diagnoses. The existence of the ganglion is supported by ultrasound reports dating from 31 March 2017[9] and in Dr Paul’s medical reports from 11 May 2017[10] although is questioned in the MRI report of 9 September 2020.[11] As Ms Nguyen’s GP and all of the specialists that have reported on her condition since 30 March 2017 have confirmed the existence of a ganglion, the Tribunal favours the evidence in support of the existence of a ganglion to the questions raised by the MRI report. [9] Exhibit 5, T4, p18.[10] Exhibit 4, p457.[11] Exhibit 5, T72.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The matters set out in s 5B(2) of the SRC Act must be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment with the Commonwealth.The duration of the employment It is not in dispute that Ms Nguyen has been employed by the ATO for the vast majority of her working life, a period of about 20 years. There is certainly little chance that employment other than her employment with the Commonwealth at the ATO could have caused or contributed to Ms Nguyen’s ganglion. The Tribunal is satisfied that should employment be found to have a significant causal relationship with Ms Nguyen’s ailment, based upon her employment history, it would be her employment with the Commonwealth that was the cause of the ailment. This militates toward a finding that her ATO employment was a significant contributor.The nature of, and particular tasks involved in, the employment While there has been some questioning of Ms Nguyen’s evidence in relation to changes in her keying and mouse use when she changed roles in mid 2020, it has not been disputed that Ms Nguyen’s employment at the ATO has involved her working at a desk in front of a computer using a keyboard and a mouse for most of her working day. There is also no suggestion that Ms Nguyen’s employment has involved any work that could be the cause of a singular trauma to her wrist. Ms Nguyen’s managers, Mr Bodanac, Ms Whelan, and Mr Tripp; all expressed views that Ms Nguyen’s role was mainly computer based but was not intensive as Ms Nguyen claimed. Much was made, by the Respondent, of Ms Nguyen’s shifting recall of events. Examples included: ·Ms Nguyen’s original statement of 20 April 2021 compared with the amended statement dated 4 February 2022, after she had seen the statement of Mr Tripp:Original statement excerpt:“In mid-2020, when I was undertaking a lot of intense processing for the ERS [Early Release Superannuation] team, the constant pain in my wrist became much more severe, and felt like a sharp stabbing pain, rather than the ache that it had been before.”[45]Amended statement excerpt:“I wish to clarify that, when I stated that I was “undertaking a lot of intense processing for the ERS team”. I was not suggesting that I was doing any more work than I had previously in my substantive role, nor was I indicating that I was doing any more work than any of my colleagues. I was simply indicating that the work I was undertaking whilst assisting the ERS team was different to that I had been doing in my substantive role, in that it placed more strain on my wrist.”[46] ·That Ms Nguyen told the Tribunal that she had constant wrist problems since June 2016 for which she lodged a workers’ compensation claim, but the Respondent puts that an Initial Needs assessment Report of 11 July 2016 describes: a permanent ‘dry eye’ condition; a skin condition in her lower torso; shoulder pain; emotional and psychological issues – with no mention of wrist pain. The Respondent also questioned Ms Nguyen’s memory of events as they had no evidence of a compensation claim in relation to her wrist in 2016. The Tribunal notes that there was evidence of such a claim.·Under cross examination Ms Nguyen stated that she had difficulty remembering exactly when her right wrist pain had become constant, but she believed that the pain was on and off until about 17 June 2020 when the pain became constant. Ms Nguyen mentioned a number of dates in June 2020 when her wrist pain became constant and was particularly vague in her evidence about how many days she had been involved in the work with the ERS team.[45] Exhibit 1, p23.[46] Exhibit 1, p79.