Phillips and Australian Capital Territory (Compensation) - [2019] AATA 936

Phillips and Australian Capital Territory (Compensation) [2019] AATA 936 (20 May 2019)
Division:GENERAL DIVISION
File Number(s): 2016/5772
Re:Linda Phillips
APPLICANT

Australian Capital TerritoryAnd
RESPONDENT

Decision
Tribunal:Senior Member Linda Kirk
Date:20 May 2019
Place:Canberra

The Tribunal affirms the reviewable decision.
........................................................................
Senior Member Linda Kirk
Catchwords
COMPENSATION – achilles tendonitis/tendinopathy – whether claimed condition is an ailment or injury simpliciter – whether claimed condition arose out of or in the course of her employment – meaning of ‘place of work’ and ‘ordinary recess’ considered – whether Applicant injured while undertaking activity ‘associated with’ her employment or at the ‘direction or request of the Commonwealth’ – whether Applicant’s employment significantly contributed to her condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 14
Cases
Australian Postal Corporation v Burch (1998) 156 ALR 483
Charles R Davidson Co v M’Robb [1918] AC 304
Comcare v Mooi (1996) 69 FCR 439
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Foley and Comcare [2012] AATA 458
Kavanagh v The Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2016] AATA 459
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Weston v Great Bolder Mining Ltd (1964) 112 CLR 34
Secondary Materials
ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017
REASONS FOR DECISION
Senior Member Linda Kirk
20 May 2019
INTRODUCTION

Linda Phillips (‘the Applicant’) was born in June 1967. She was employed by ACT Health (‘the Agency’) from January 1986 to October 2016.
In November 2014 the Applicant was employed as a Senior Officer Grade C Information Manager, which was an administrative data management role in the Agency’s Strategy and Corporate division.[1]
[1] T8, p35.
In November 2014 the Agency operated from leased premises at 11 Moore Street, Canberra City (‘the Agency’s premises’). The Agency did not have any lease over, or other claim to, the public footpath running along the western side of Moore Street and its employees’ duties were not carried out on the footpath.[2]
[2] Exhibit R6, Statement of Janine Hammat dated 27 June 2018 at para 8.
On 17 February 2015 the Applicant made a claim under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) for ‘Achilles tendon injury/Achilles tendinitis’ (‘the Claimed Injury’) which she claimed developed following an incident on 25 November 2014 in which the Applicant injured her ‘Achilles tendon left leg’ whilst assisting an elderly man who had fallen on the pavement near the corner of Moore and Rudd Streets, Canberra (‘the November 2014 incident’).
Comcare issued a determination dated 4 May 2015 denying liability under s 14 of the SRC Act.[3] It determined that it was not liable for the Applicant’s ‘Achilles bursitis/tendonitis’ on the…

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.

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Details

Case: [2019] AATA 936
Decision Date: 20 May 2019

CaseChat Overview and Summary

This matter came before the Tribunal concerning a claim for compensation by the Applicant, Ms. Phillips, against the Australian Capital Territory. The dispute centred on whether Ms. Phillips had suffered an ailment or injury arising out of or in the course of her employment, specifically relating to achilles tendonitis/tendinopathy. The core of the case involved determining the nature of her condition and its connection to her work.

The legal issues before the Tribunal were multifaceted. Firstly, it was necessary to ascertain whether the Applicant's condition constituted an "ailment" or an "injury (other than a disease)" under the relevant legislation. If it was deemed an injury other than a disease, the Tribunal had to determine if this injury arose out of or in the course of her employment, considering whether it occurred at her place of work, during an ordinary recess, or while undertaking an activity associated with her employment or at the direction of the Commonwealth. Alternatively, if the condition was classified as an ailment, the Tribunal was required to assess whether her employment had significantly contributed to its development.

The Tribunal's reasoning focused on distinguishing between an "injury simpliciter" and a "disease" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). An injury simpliciter requires a causal or temporal connection with employment, often involving a sudden and ascertainable physiological change. A disease, conversely, requires significant contribution from employment. The Tribunal considered the Applicant's employment duties and break arrangements, noting that she was not required to take breaks at specific times and could do so at irregular intervals. Ultimately, the Tribunal found that the Applicant did not suffer an "injury" as defined by section 14 of the SRC Act.

Consequently, the Tribunal concluded that the Respondent was not liable to pay compensation to the Applicant for the claimed injury. The Reviewable Decision 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 for determination in the review are:(1) Whether the Applicant’s suffered an ‘ailment’ or an ‘injury (other than a disease)’?(2)If the Applicant suffered ‘an injury (other than a disease)’;(a)Whether the Applicant’s injury arose out of or in the course of her employment under s 5A or 6(1) of the SRC Act?(i)Whether the injury occurred whilst the Applicant was at her ‘place of work’ or was temporarily absent from that place during an ‘ordinary recess’ within the meaning of s 6(1)(b) of the SRC Act?(ii)Whether the injury occurred whilst the Applicant was undertaking an activity ‘associated with’ her employment or at the ‘direction or request of the Commonwealth’ within the meaning of that term in s 6(1)(c) of the SRC Act?(iii)Was the Applicant injured during an interval in an overall period of employment and if so:(A)Was the Applicant injured whilst engaged in an activity or whilst at a place?(B)Did the Applicant’s employer induce or encourage the Applicant to engage in the activity that she was engaged in at the time she was injured or induce or encourage her to be at the place where the injury occurred.(3) If the Applicant suffered ‘an ailment’;(a)Whether the Applicant’s employment significantly contributed to the development of that ailment within meaning of that term in s 5B of the SRC Act?EVIDENCE BEFORE THE TRIBUNALApplicant’s work with the Agency The Applicant’s duties as a Senior Officer Grade C Information Manager with the Agency included developing and maintaining the Directorate’s metadata resources, and documenting policies, procedures, and standards for managing data definitions.[6] The Applicant worked at the Agency’s premises..[6] T7, p 32. The Applicant’s employment with the Agency was governed by the ACT Public Service Administrative and Related Classifications Enterprise Agreement 2013-2017 ‘the EA’). The EA prescribes a one hour lunch break between 12:30 and 1:30pm. There is no provision made for fixed morning breaks for staff.[7] [7] Exhibit R6, Statement of Janine Hammat dated 27 June 2018 para 11-[12]; Transcript of proceedings, 11 December 2018, p139 There was no informal or unofficial convention or procedure that required an employee of the Agency to take a break at a particular time in the morning or afternoon.[8] Employees therefore took morning breaks at irregular times.[9][8] Transcript of proceedings, 11 December 2018, p78, lines 13-20.[9] Transcript of proceedings, 11 December 2018, p78, lines 23-37. The Applicant told the Tribunal that there was no specific time at which she was required to take her morning tea break.[10] She did not record on her flex sheet the time at which she had a morning tea break.[11] She was able to take a break during the morning at any time she wished to do so provided she did not take too many breaks and was not absent from the office for too long.[12] The Applicant would take a coffee/cigarette break at various times during the morning.[13] She was not required to advise her manager when she was leaving the office for a short period of time for a morning coffee/cigarette break.[14][10] Transcript of proceedings, 10 December 2018, p24 line 19.[11] Transcript of proceedings, 10 December 2018, p24 line 24-29.[12] Transcript of proceedings, 10 December 2018, p40, lines 20-33.[13] Transcript of proceedings, 10 December 2018, p41, lines 3-34.[14] T20, p51; Transcript of proceedings, 10 December 2018, p 44, lines 19-31The November 2014 incident

Decision

Reasons for decision

The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an ‘injury’ within the meaning of s 14 of the SRC Act. The Respondent is therefore not liable to pay compensation to the Applicant for the Claimed Injury.DECISION The Reviewable Decision is affirmed.

Ratio Decidendi

Legal Principle Established

If the Applicant suffered an ‘ailment’, it was not significantly contributed to by her employment. She was not engaged in or undertaking her work duties at the time the injury was sustained.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. Did the Applicant suffer a ‘disease’ or ‘an injury (other than a disease)’? - s5A(1)(b) SRC Act The first issue for the Tribunal’s consideration is whether the Claimed Injury for which the Applicant seeks compensation can be considered a ‘disease’ or an ‘injury other than a disease’ for the purposes of the SRC Act.Distinction between an ‘injury simpliciter’ and a ‘disease’ The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (‘May’), French CJ, Kiefel, Nettle and Gordon JJ at [42]), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’: May per French CJ, Kiefel, Nettle and Gordon JJ at [44]. An injury simpliciter is contrasted with a disease, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486 (‘Burch’); Prain v Comcare [2016] AATA 459 at [7]-[8]. Whether a claimed condition is an injury simpliciter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (‘Kennedy Cleaning’), ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’ at [22]. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’: Kennedy Cleaning per Gleeson CJ and Kirby J at [39].What is an ‘injury simpliciter’? In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ at [52]. Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’…’ at [39]. In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘…a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’ at 488.