Oliver and Comcare (Compensation) - [2021] AATA 86

Oliver and Comcare (Compensation) [2021] AATA 86 (4 February 2021)
Division:GENERAL DIVISION
File Number(s): 2018/7731
Re:Jennifer Oliver
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries AO
Dr Peter Wilkins, Member
Date:4 February 2021
Place:Canberra

The Tribunal affirms the reviewable decision of 7 June 2018, denying liability for C5/C6 injury pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.
...............[sgd].................................................
Deputy President Gary Humphries AO
Catchwords
Workers Compensation – arm condition affecting shoulder, elbow, wrist - whether condition is an injury or disease – whether disease was contributed to, to significant degree, by employment – inconsistent medical evidence and diagnoses
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Abrahams v Comcare [2006] FCA 1829
Beezley v Repatriation Commission [2015] FCAFC 165
Health Insurance Commission v Van Reesch (1996) 45 ALD 302
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Montesalvo and Australian Postal Corporation [2011] AATA 319
Secondary Materials
Dr Brian McHugh, ‘What Is Degenerative Disc Disease?’ 2017, Spine Health.com

REASONS FOR DECISION
Deputy President Gary Humphries AO
Dr Peter Wilkins, Member
4 February 2021
INTRODUCTION

Ms Jennifer Oliver was born in April 1970 and is 50 years old. Between 2014 and 2018, while working for Services Australia, she developed a painful right arm condition affecting her shoulder, elbow and wrist. She has made two separate claims for workers compensation in relation to this condition, both of which have been rejected by Comcare. The second claim, which was described as a C5/C6 Injury affecting her Right arm shoulder elbow and wrist, is the subject of the present application to the Tribunal for merits review.[1]
[1] In this decision italics generally connote a direct quotation.
The parties have agreed that this application should be heard without a full hearing, i.e. “on the papers”. On 10 September 2020 the Tribunal heard brief oral submissions from the parties, essentially to clarify the issues in the proceedings.
As part of the alternative dispute resolution process, Senior Member O’Donovan prepared a neutral evaluation report on Ms Oliver’s claim. Pursuant to s 34E of the Administrative Appeals Tribunal Act 1975 Ms Oliver did not consent to that report being made admissible to the Tribunal for the purposes of the “on the papers” hearing. The Tribunal as presently constituted has therefore not seen the neutral evaluation report.
BACKGROUND
Ms Oliver commenced employment with Services Australia (then called the Department of Human Services) (the Department) on 23 April 2012.
On 27 June 2016 she completed a claim for workers compensation, claiming right side Tennis elbow, from mouse work duties. She wrote that she first noticed her condition on 27 May 2015 and first sought medical treatment on 15 March 2016.
On 26 August 2016 a delegate for Comcare determined that Comcare was not liable to pay compensation for this condition, which he described as non-specific upper limb pain (right),…

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 Oliver and Comcare (Compensation)

Details

AGLC: Oliver and Comcare (Compensation) [2021] AATA 86
Case: [2021] AATA 86
Decision Date: 4 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Ms Oliver against Comcare's decision to deny her workers' compensation claim for a condition affecting her right arm, shoulder, elbow, and wrist. The Administrative Appeals Tribunal (AAT), constituted by Deputy President Gary Humphries AO and Member Dr Peter Wilkins, was required to determine whether Ms Oliver's condition constituted an "injury" or a "disease" under the relevant legislation, and if so, whether her employment had contributed to it to the necessary degree.

The central legal issues before the Tribunal were twofold. Firstly, it had to ascertain whether Ms Oliver's condition should be classified as an "injury" (other than a disease) or a "disease" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This distinction was critical because an injury requires only a temporal connection to employment, whereas a disease requires proof that employment contributed to it to a significant degree. Secondly, the Tribunal had to determine, based on the available medical evidence, whether Ms Oliver's employment had, in fact, contributed to her condition to the extent required by the Act.

The Tribunal's reasoning focused on the nature of Ms Oliver's claimed condition, specifically a C5/C6 ailment involving degenerative arthropathy and foraminal stenosis. While Comcare conceded the existence of this ailment, it argued that there was no evidence of employment contribution. The Tribunal noted that degenerative conditions are typically age-related and do not inherently imply trauma or external causes. It found that the medical evidence, which referred to degenerative disc disease, did not assist Ms Oliver's claim as it did not establish a causal link to her employment. Furthermore, the Tribunal observed that no medical evidence supported Ms Oliver's contention of suffering from oedema. Applying the principles established in *Beezley v Repatriation Commission*, the Tribunal concluded that Ms Oliver had not provided sufficient evidence to satisfy the statutory requirements for compensation, stating that a finding in favour of an applicant must be based on more than speculation.

Consequently, the Tribunal affirmed Comcare's reviewable decision of 7 June 2018, which denied liability for the claimed C5/C6 injury. The Tribunal was not satisfied that Ms Oliver suffered from a condition meeting the statutory requirements of an injury, nor that, even if it did, its connection with her employment met the necessary threshold on the balance of probabilities.

Orders

Orders of the court

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Background

Background to the litigation

As part of the alternative dispute resolution process, Senior Member O’Donovan prepared a neutral evaluation report on Ms Oliver’s claim. Pursuant to s 34E of the Administrative Appeals Tribunal Act 1975 Ms Oliver did not consent to that report being made admissible to the Tribunal for the purposes of the “on the papers” hearing. The Tribunal as presently constituted has therefore not seen the neutral evaluation report.BACKGROUND Ms Oliver commenced employment with Services Australia (then called the Department of Human Services) (the Department) on 23 April 2012. On 27 June 2016 she completed a claim for workers compensation, claiming right side Tennis elbow, from mouse work duties. She wrote that she first noticed her condition on 27 May 2015 and first sought medical treatment on 15 March 2016. On 26 August 2016 a delegate for Comcare determined that Comcare was not liable to pay compensation for this condition, which he described as non-specific upper limb pain (right), on the basis that there was no significant contribution from employment. Following reconsideration, a delegate affirmed that determination on 18 October 2016. On 12 December 2016 Ms Oliver filed an application for review by the Tribunal of the reviewable decision of 18 October 2016. However, on 14 March 2018 she withdrew that application. On 4 April 2018 Ms Oliver submitted a new workers compensation claim in which she claimed to have suffered C5/C6 injury which affected her Right arm shoulder elbow and wrist. On 7 June 2018 Comcare refused liability for this claim too. She sought reconsideration of this decision, but a delegate affirmed it on 7 June 2018. On 23 January 2019 Ms Oliver filed an application for merits review by the Tribunal of the reviewable decision dated 7 June 2018. Eight days later she retired from the public service for medical reasons.MEDICAL HISTORY On 20 October 2014 Dr Uthum Dias, an occupational physician, prepared a fitness for duty assessment in relation to Ms Oliver. He noted that she had mild and non specific soft tissue pain in the right arm and right wrist which presently do not fit with an objective clinical diagnosis. On 4 November 2014 a general practitioner, Dr Douglas Gock, recorded that she had developed sore right arm from using mouse, with tenderness of upper arm ante laterally and posteriorly and pain in her right wrist. He also noted a ganglion in the dorsum of her right wrist. He wrote to the department that Ms Oliver had non specific soft tissue pain in her right upper limb shoulder, elbow and wrist which was likely to have been caused by repetitive strain. He repeated this opinion in a leave certificate dated 3 February 2015. On 20 May 2015 Dr Gock recorded that her right arm is progressively worse with RSI, and he diagnosed right lateral epicondylitis. On 15 March 2016 he recorded tennis elbow in his clinical notes. On 19 May 2016 Dr Xiao Luo, apparently a GP, wrote that Ms Oliver was suffering from right elbow pain due to tennis elbow. On 3 June 2016 Dr Luo recorded likely epicondylitis and noted use of mouse aggravate pain [sic]. On 17 June 2016 he recorded significant pain in right arm, medial and ulna[r] nerve pain and noted that she needed physiotherapy weekly. The same day a physiotherapist, Ms Anita Doughty, wrote to Dr Luo stating Ms Oliver had seen her for treatment of work-related right arm pain. She had likely bicipital tendonitis, lateral and medial epicondylitis, possible deQuervain’s...it looks like Complex Regional Pain Syndrome.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Oliver asked the Tribunal to consider carefully the report of Dr Pik of 7 May 2018, where he stated that a recent MRI once again demonstrated the C5/6 intervertebral disc degeneration associated with right more than left foraminal stenosis. This opinion appears to align with similar views of Drs Fitzgerald and Cherukuri. All three doctors make reference to the C5/6 condition being degenerative or relating to degeneration. However, degenerative disc disease is … a condition in which natural, age-related wear-and-tear on a disc causes pain, instability, and other symptoms.[2] The term does not, of itself, imply trauma or other external causes. In this context the references to degenerative disc disease do not assist Ms Oliver.[2] >Finally, Ms Oliver contended that she suffered from oedema, or fluid retention, which is the result of an injury. The only cause of injury to her arm, she said, was work. Putting aside the unproven assumption in that contention, none of the medical evidence refers to oedema. If it was an early diagnosis, it was clearly discarded as time went by.CONCLUSIONA finding in favour of an applicant before a court or tribunal must be based on more than speculation. No general onus of proof lies on an applicant for review in Tribunal proceedings, of course, but the Federal Court has clarified the nature of the obligation on an applicant to articulate a case upon which a claim might proceed. In Beezley v Repatriation Commission [2015] FCAFC 165 at [68] the Full Court said:If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest…[Citations omitted.]The Tribunal is not satisfied that Ms Oliver suffers from a condition meeting the requirements of an injury outlined in May. Even if the condition she suffers from, the diagnosis of which we are unable to determine, does meet those requirements, its connection with employment does not, on the balance of probabilities, meet the persuasive threshold described in Beezley. The reviewable decision of 7 June 2018, denying liability for C5/C6 injury, is affirmed. I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries, AO and Dr Peter Wilkins, Member .......................................................................AssociateDated: 4 February 2020 Date of hearing: 24 December 2020 (on the papers) Date final submissions received: 12 November 2020 Applicant: In person Solicitors for Respondent: Shery Sidrak

Ratio Decidendi

Legal Principle Established

Comcare concedes that Ms Oliver has suffered a C5/C6 ailment, namely degenerative arthropathy at the C5/C6 vertebral level, causing radiculopathy. It contends, however, that there is no evidence available which supports that her employment contributed at all to her ailment, let alone that there was a significant contribution from employment. CONSIDERATION It is important at the outset to establish whether the condition which Ms Oliver asserts is the basis for compensation is a disease or an injury (other than a disease) pursuant to s 5A. The distinction is important because each definition carries a different test of relationship to employment. If, as Ms Oliver asserts, her painful condition of the right arm arose during the time she was working for the Department, then she will be entitled to compensation if the condition is considered an injury (other than a disease). This is because a such a condition is compensable if it arises in the course of employment; that is, it needs only a temporal connection with employment, not a causal one: s 5A(1)(b). If, however, her painful condition is a disease, then it can only be considered compensable if it was contributed to, to a significant degree, by her employment. Her employment must play a significant role in the onset or aggravation of the disease if it is to be compensable: s 5B(1). Whereas previous cases establish that a broken leg is clearly an injury (other than a disease) and mesothelioma contracted through exposure to asbestos is clearly a disease, there are many conditions in between these clinical extremes which fall into a grey area defying easy categorisation. Indeed, a condition may satisfy both definitions. Though dealing with an earlier version of the Act, Wilcox J in Health Insurance Commission v Van Reesch (1996) 45 ALD 302 at 312-313 helpfully and relevantly discussed the distinction between injury (or what his Honour termed injury by accident) and disease:There are difficulties about the definitions of "disease" and "injury" in the 1971 Act. The word "injury" is defined, subject to any indication of a contrary intention, as meaning "any physical or mental injury" and including "the aggravation, acceleration or recurrence of any physical or mental injury" but, subject to s 29, as not including "a disease or the aggravation, acceleration or recurrence of a disease". I have already quoted the definition of "disease". It is framed in extremely wide terms. The word "disease" is said to include "any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development". A broken femur is a physical ailment, disorder or defect. Read literally, the definition would compel the conclusion that a broken femur sustained by an employee falling off a ladder while working should be regarded for the purposes of the Act as a "disease" rather than an "injury". The same position would apply to the injuries suffered by an employee in a motor vehicle accident. On this approach, the concept of "injury" would be superfluous. Anything that met the opening words of the definition of "injury" - that is, "any physical or mental injury" - would also be a disease and thus excluded from the definition by its concluding words. Section 27 of the Act would be redundant. There would be no situation in which an employee sustained "personal injury arising out of or in the course of" employment by the Commonwealth, as distinct from contracting a "disease". The courts have not interpreted the definitions in this way. Before the 1971 statute was enacted, it was authoritatively established that, for the purposes of the previous (1930) Act, there was a clear distinction between injury by accident and incapacity through disease. The leading case was The Commonwealth v Hornsby [1960] HCA 27; (1960) 103 CLR 588, a case in which the employee had suffered a stroke while travelling to work. At 593 Dixon CJ remarked that: "... there is no sufficient ground for excluding from the operation of s. 9 what would otherwise be an injury by accident simply because it is the outcome or the attendant consequence of disease or of physiological degeneration or deterioration." Implicit in this statement is the view that an injury may be an "injury by accident" even though entirely internal. Fullagar J made that point explicit. At 596-597 he said: "Under Acts, such as the Commonwealth Act, which do not expressly equate death or incapacity resulting from disease to death or incapacity resulting from traumatic injury, it is generally true to say that a claimant, who proves that death or incapacity resulted from a disease or the development of a disease, does not thereby establish that he has suffered 'personal injury by accident'. This statement, however, requires qualification, because the words 'injury by accident' (apart from special statutory definition) have received an extended meaning in a large number of cases. The cases which require consideration in this connexion fall, I think, into three classes. In the first place, there are the cases in which a disease has been actually contracted through exposure to infection or other risk attendant on the conditions of employment. It has been said that the entry of a harmful bacillus constitutes an injury by accident. ... Then there are, secondly, the cases where there is actual internal physical injury such as the rupture of an aneurism or of an oesophagus ... It has been said, naturally enough, that the breaking of an artery cannot be distinguished from the breaking of a leg. Then we have finally the class of case in which death or incapacity results not from an actual physical injury, external or internal, but from the development or culmination of a pre-existing and progressive morbid physical condition. In these cases the final occurrence which results in death or incapacity is commonly referred to as a 'sudden physiological change'... Cases belonging to the second of the three classes mentioned above are not properly regarded as cases of disease at all. They are cases of injury within the ordinary acceptation of that word, and, where the employer contested liability, it was usually on the ground that there was a pre-disposing physical condition and that it was not enough that some incident of the employment had contributed to the death or disablement. To this the answer of the courts was, in effect, that the employer must take the worker as he finds him. This is now well settled. Cases of the first and third classes are, of course, cases of disease."