Prior and Comcare (Compensation) - [2017] AATA 844

Prior and Comcare (Compensation) [2017] AATA 844 (9 June 2017)
Division:GENERAL DIVISION
File Number: 2015/1679
Re:Gaye Prior
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:9 June 2017
Place:Melbourne

The Tribunal affirms the decision under review.
...................................[sgd].....................................
Regina Perton, Member
COMPENSATION – claim for compensation for work-related condition - unspecified cervical disc disorder - computer and keyboard duties - upper limb pain – whether condition was contributed to by employment – whether condition was aggravated by employment – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5B, 14(1)
Cases
Casarotto v Australian Postal Corporation (1989) 10 AAR 191
Commonwealth v Beattie (1981) 53 FLR 191
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Balacki and Comcare [2013] AATA 768
Re Cooper and Comcare [2010] AATA 625
REASONS FOR DECISION
Regina Perton, Member
9 June 2017
BACKGROUND

Ms Gaye Prior works for the Department of Human Services (the Department) as a customer service officer answering telephone queries from Centrelink clients. She lodged a claim for compensation dated 14 August 2014 with the Department for an injury described as Right C6-C7 disc injury causing right shoulder, elbow and arm pain and dysfunction.
On 25 November 2014 Comcare issued a determination denying liability for Unspecified disc disorder, cervical (right) on the basis that Ms Prior’s condition had not been significantly contributed to by her employment. On 24 March 2015 a Comcare review officer affirmed the determination. On 8 April 2015 Ms Prior lodged an application for review with the Tribunal.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) states:
Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5B of the SRC Act states:
Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material
…
Section 4(1) of the SRC Act defines relevant terms:
…
"aggravation" includes acceleration or recurrence.
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether…

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 Prior and Comcare (Compensation)

Details

AGLC: Prior and Comcare (Compensation) [2017] AATA 844
Case: [2017] AATA 844
Decision Date: 9 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Prior against a decision by Comcare. Ms Prior sought compensation for a condition she alleged was contributed to by her employment with the Department. The Administrative Appeals Tribunal (AAT) was required to determine whether Ms Prior suffered from an ailment and, if so, whether that ailment was contributed to, to a significant degree, by her employment.

The Tribunal considered conflicting medical evidence regarding Ms Prior's diagnosis. While Mr Mills, an orthopaedic surgeon, suggested intersection syndrome and complex regional pain syndrome, a consultant rheumatologist, Dr Reiter, diagnosed cervical spine degenerative disc and facet joint disease. The Tribunal preferred Dr Reiter's diagnosis, which was supported by radiological evidence, and found that Ms Prior suffered from cervical spine degenerative disc and facet joint disease.

The Tribunal then assessed whether Ms Prior's employment had significantly contributed to her condition. Ms Prior testified that her work involved extensive computer mouse use. However, the Tribunal noted that Ms Prior had not informed all treating doctors about a previous fall, nor had she discussed the potential link between her work and her condition with Dr Tan. While Mr Mills opined that work-related activities were a significant contributing factor, the Tribunal found that Ms Prior's employment did not contribute to her ailment to a significant degree.

Consequently, the Tribunal concluded that Ms Prior suffered from an ailment but that it was not significantly contributed to by her employment. Therefore, she did not suffer from a disease as defined by the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and was not entitled to compensation. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal concludes that Ms Prior suffers from an ailment under the SRC Act but the ailment was not contributed to, to a significant degree, by her employment by the Commonwealth. Consequently Ms Prior does not suffer from a disease and is not entitled to compensation under s 14 of the SRC Act. DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

In a supplementary report dated 18 March 2016, Dr Reiter commented on Mr Mills’ diagnosis. She stated that Ms Prior does not have mild intersection syndrome, which she described as a painful condition that affects the thumb side of the forearm, and the mechanism of injury is usually repetitive-resisted extension of the wrist as with rowing, weightlifting or pulling, but not associated with keying on a computer. Dr Reiter agreed with Mr Mills that Ms Prior has cervical spondylosis as the cause of her pain, but no signs or symptoms of C8 nerve irritation. Dr Reiter agreed that Ms Prior more than likely has referred pain in her right arm due to the cervical spondylosis, and that there were no signs and symptoms of complex regional pain syndrome.Consideration Professor Davis, neurologist, found no neurological features and suggested a rheumatologist be consulted. Dr Reiter, consultant rheumatologist, diagnosed cervical spine degenerative disc and facet joint disease, and Mr Mills, orthopaedic surgeon, agreed that there was evidence of cervical spondylosis. The Tribunal prefers the diagnosis by Dr Reiter, which was supported by appropriate radiology, rather than the speculative diagnoses by Mr Mills of intersection syndrome and a history of complex regional pain syndrome that had largely resolved, and finds that Ms Prior suffers from cervical spine degenerative disc and facet joint disease.Was Ms Prior’s condition contributed to, to a significant degree, by her employment with the Department? In oral evidence at the hearing, Ms Prior said that her work involved 60 per cent using a mouse and 40 per cent using a keyboard. There were about 8 to 10 clicks of the mouse per call, and 50 to 60 inward calls per day, resulting in about 400 to 600 clicks of the mouse per day. She said that she is still working and still suffers pain, even though the symptoms have reduced in severity. She agreed that she had not told doctors about a fall that she had experienced some years earlier. In a file noted dated 25 March 2013, Ms Prior’s manager recorded that Dr Kee advised that he understood that Ms Prior’s symptoms subsided when she was off work. He did not know the type of work undertaken by Ms Prior. Dr Tan stated in her report that during the consultation and examination, Ms Prior did not mention that she was claiming compensation for a workplace injury, and consequently there was no discussion about her duties or the possibility of a connection between her employment and her medical condition. Dr Tan stated that she did not obtain any details about the nature of the applicant’s work and any recreational activities that might have caused or aggravated her condition. Dr Tan added that Ms Prior did not spontaneously volunteer any belief that the execution of her work had in any way caused or aggravated her condition. Mr Mills stated in his report that intersection syndrome relates to frequent use of a computer mouse, while cervical spondylosis has a degenerative relationship. He stated that work-related activities and posture have been a significant contributing factor to the symptomatic development of Ms Prior’s disc protrusion and arm pain, and he concluded that intersection syndrome, cervical spondylosis and disc protrusion and the shoulder/hand syndrome or complex regional pain syndrome have all been contributed to, to a significant degree, by Ms Prior’s employment and the history she gave.