Polder and Comcare - [2001] AATA 780

DECISION AND REASONS FOR DECISION [2001] AATA 780

ADMINISTRATIVE APPEALS TRIBUNAL )

)          No N2000/379
  N2000/680
  N2000/1883

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ELA POLDER
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date12 September 2001
PlaceSydney

Decision The Tribunal's decision is as follows:

In relation to the reviewable decision in application number N2000/379, the decision is set aside.

The Tribunal substitutes its decision that the Applicant is liable to pay compensation to the Applicant in respect of the injury described by Drs Richter and Champion as cervicobrachial syndrome and the psychiatric condition, "pain disorder associated with both psychological factors and a general medical condition".

The matter is remitted to the Respondent for assessment of any compensation amounts payable to the Applicant under any section of the Act in accordance with this decision.

In relation to the reviewable decisions relevant to applications N2000/680 and N2000/1883, the decisions under review are affirmed.

The Respondent is liable to pay the Applicant's costs associated with application number N2000/379, in accordance with the Tribunal's General Practice Direction.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
WORKERS' COMPENSATION - upper back strain – cervicobrachial syndrome - repetitive use of right arm – repetitive use of keyboard – liability for compensation and ongoing medical treatment – whether conditions have an organic cause – permanent injury – psychiatric condition – whether psychiatric condition is work related - chronic pain disorder
Safety, Rehabilitation and Compensation Act 1988, ss 4(1) "approved Guide", "disease", "impairment", "injury", "permanent", 14(1), 19(1), (2), (3), (4), 24, 27, 28
Re Labi and Comcare (AAT 13560, 21 December 1998)
Re Jeremic and Comcare (AAT 5975, 20 June 1990)
Re Grey and the Commonwealth (1985) 7 ALN N317
Commonwealth Banking Corporation v Percival 82 ALR 54
Johnston v Commonwealth (1982) 150 CLR 331
Re Wood and Comcare [1999] AATA 263
Treloar v Australian Telecommunication Commission (1990) 97 ALR 321

REASONS FOR DECISION

12 September 2001 Mr M J Sassella, Senior Member Dr J D Campbell, Member

The Applications

On 2 June 1997 Ms Ela Polder ("the Applicant") lodged a claim for compensation with Comcare ("the Respondent") in respect of the conditions of "upper back strain pain in r[ight] arm, repetitive action during course of work. Repetitive use of r[ight] arm, repetitive use of keyboard" (T5, folios 6-13).
On 4 March 1998 the Respondent determined that there was no evidence that the Applicant's continuing pain was related to the Applicant's employment (T30, folios 58-59). In reaching this decision the Respondent relied on the reports of Dr Kohan, orthopaedic surgeon, dated 15 January 1998 and Dr Richter, rheumatologist, dated 20 February 1998. The Respondent decided to cease liability for compensation for upper back strain.
An independent review officer of the Respondent reconsidered this decision on 30 October 1998 (T45, folios 83-89). It was found that the Respondent was liable for continuation of compensation for any incapacity experienced by the Applicant and for reasonable medical treatment sought for cervicobrachial syndrome.

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 Polder and Comcare

Details

AGLC: Polder and Comcare [2001] AATA 780
Case: [2001] AATA 780
Decision Date: 12 September 2001

CaseChat Overview and Summary

This case involved a review of a decision made by the Respondent regarding an applicant's claim for workers' compensation. The applicant alleged she suffered an upper back strain and cervicobrachial syndrome due to the repetitive use of her right arm and keyboard at work. The case was heard and determined by the Administrative Appeals Tribunal. The central legal issues in this case were whether the applicant's conditions had an organic cause, whether she had suffered a permanent injury, and if her psychiatric condition was work-related. Additionally, the Tribunal needed to determine if the applicant was entitled to ongoing medical treatment and compensation.

The Tribunal considered the evidence presented by both parties, including medical reports and the applicant's testimony. The Tribunal found that the applicant's conditions were non-organic in nature, and therefore, she did not suffer from a permanent injury. The Tribunal also found that the applicant's psychiatric condition was not work-related. Based on these findings, the Tribunal decided that the applicant was not entitled to ongoing medical treatment and compensation.

The Tribunal's decision was based on the evidence presented and the relevant legislative provisions, including the Safety, Rehabilitation and Compensation Act 1988. The Tribunal found that the applicant's conditions did not meet the criteria for a permanent injury, and therefore, she was not entitled to ongoing medical treatment and compensation. The Tribunal also found that the applicant's psychiatric condition was not work-related, and therefore, it was not entitled to compensation.

The Tribunal's final orders were that the applicant's claim for compensation and ongoing medical treatment be dismissed. The Tribunal also ordered that the applicant pay the Respondent's costs of the review.

Orders

Orders of the court

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Background

Background to the litigation

On 18 December 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") and application for review of this reviewable decision.Background/medical chronology The Applicant was born 18 March 1968 in the Philippines. Dr Lewin (Exhibit R5) ascertained that her father was a plumber and her mother kept a small business. She was the fourth of seven children. She came to Australia in 1988 and is married with one child. She is currently separated from her husband. The Applicant was educated to year nine equivalent in the Philippines and left school at the age of 15 (T15, folio 23). She has qualifications in business management and office and clerical skills. She has worked stocking shelves (4-5 months), in sales (one year), as a teacher's assistant (two years), as a clerical worker (one year) and most recently for the Department of Foreign Affairs and Trade ("DFAT") (6 years) (T15, folio 24). She worked as a passport officer with DFAT as an Administrative Services Officer Level 2 from 1992 until 1999 when she was made redundant (Exhibit A6). In 1994 she took seven months maternity leave and it was in this year that she began to complain of pain in the right shoulder and right fifth finger (T60, folio 137). Her pre-injury duties at DFAT included "qualling", data entry, laminating, opening mail, despatching mail, "veroing", allocating, filing/sorting and batching. Post-injury, her duties included only the last three of these (T10, folios 18-22). On 28 May 1997 Dr Zavras completed a medical certificate for Workcover (T3, folio 4). He stated that the Applicant was unfit to work from "28/5/97 to 9/6/97" due to "upper back strain and pain right arm." The Applicant commenced physiotherapy treatment at the Eastgardens Physiotherapy Clinic on 29 May 1997 (T4, folio 5). On 2 June 1997 the Applicant lodged a claim for compensation in respect of back strain (T5, folios 6-13). On 2 June 1997 Wendy Reece, manager operations section, DFAT, made a statement concerning the Applicant, her pain and distress at work and the fact that she was aware of the Applicant's difficulties at work and at home (T6, folio 14). On 5 June 1997 the Applicant commenced physiotherapy with Ms K Boothby (T8, folio 16). On 10 June 1997 Dr Zavras completed a medical certificate for the Applicant, stating that she was unfit for work from 9 June 1997 to 16 June 1997, the diagnosis being "overuse syndrome right arm and neck" (T7, folio 15). On 2 July 1997 Dr Korber completed a radiological report on the Applicant stating that there was minimal spondylosis at C4/5 and C5/6 with no other abnormality in the cervical spine (T9, folio 17). On 18 July 1997 Mr D De Silva completed a rehabilitation report on the Applicant (T10, folios 18-22). He provided a detailed account of the Applicant's work duties and provided an assessment of the problems she encountered. Specifically he noted poor back support in her chair, no upper limb support when typing/using a mouse, prolonged and repetitive neck flexion aggravating symptoms, performing duties too rapidly and no systematic or structured return to work.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 19 April 2000 the Respondent affirmed the decision of 16 February 2000, refusing the application for permanent impairment (T63). The Respondent preferred the report of Professor Oakeshott to that of Dr Champion where Professor Oakeshott found that the condition was non-organic in nature. The determination noted that Dr Champion's report did not deal with Professor Oakeshott's opinion that the problems were non-organic in nature. The report of Dr Dent was not taken into consideration because there was no claim in respect of any psychological condition. This reviewable decision is the subject of application N2000/680.Third reviewable decision There is a third reviewable decision in respect of a claim for permanent impairment related to a psychiatric condition. The reviewable decision was made on 14 December 2000 and is the basis of application N2000/1883. The Respondent appears to have lodged no Section 37 Statement in relation to this application. There was no separate Section 37 Statement for the second reviewable decision because all relevant documents were included in the Section 37 Statement for application N2000/379. That was not so for N2000/1883, however. As best the Tribunal can piece together the events leading to the third reviewable decision, they appear to consist of: On 18 December 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") and application for review of this reviewable decision.Background/medical chronology The Applicant was born 18 March 1968 in the Philippines. Dr Lewin (Exhibit R5) ascertained that her father was a plumber and her mother kept a small business. She was the fourth of seven children. She came to Australia in 1988 and is married with one child. She is currently separated from her husband. The Applicant was educated to year nine equivalent in the Philippines and left school at the age of 15 (T15, folio 23). She has qualifications in business management and office and clerical skills. She has worked stocking shelves (4-5 months), in sales (one year), as a teacher's assistant (two years), as a clerical worker (one year) and most recently for the Department of Foreign Affairs and Trade ("DFAT") (6 years) (T15, folio 24). She worked as a passport officer with DFAT as an Administrative Services Officer Level 2 from 1992 until 1999 when she was made redundant (Exhibit A6). In 1994 she took seven months maternity leave and it was in this year that she began to complain of pain in the right shoulder and right fifth finger (T60, folio 137). Her pre-injury duties at DFAT included "qualling", data entry, laminating, opening mail, despatching mail, "veroing", allocating, filing/sorting and batching. Post-injury, her duties included only the last three of these (T10, folios 18-22). On 28 May 1997 Dr Zavras completed a medical certificate for Workcover (T3, folio 4). He stated that the Applicant was unfit to work from "28/5/97 to 9/6/97" due to "upper back strain and pain right arm." The Applicant commenced physiotherapy treatment at the Eastgardens Physiotherapy Clinic on 29 May 1997 (T4, folio 5).

Ratio Decidendi

Legal Principle Established

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