Quirk and Comcare (Compensation) - [2024] AATA 3621

Quirk and Comcare (Compensation) [2024] AATA 3621 (11 October 2024)
Division:GENERAL DIVISION
File Number(s): 2021/8667, 2022/0493, 2022/9102, 2023/0196
Re:Jacqueline Quirk
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member.

Date: 11 October 2024
Place:Melbourne
Pursuant to s 43 of the Administrative Appeals Act 1975 (Cth), the Tribunal ORDERS that:
1.The first reviewable decision is set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of carpal tunnel syndrome to 2 September 2021.
2.The second reviewable decision is affirmed.
3.The third reviewable decision is set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of right elbow epicondylitis to 2 September 2021.
4.The fourth reviewable decision is affirmed.

.................................[sgd].......................................
R Cameron, Senior Member
Catchwords
COMPENSATION – commonwealth employee – applicant claimed compensation under four different applications – section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)– definition of ‘injury’ under subsection 5A(1) SRC Act - aggravation of underlying carpal tunnel syndrome - De Quervains tenosynovitis not significantly contributed to by employment - aggravation of underlying lateral epicondylitis – permanent impairment not significantly contributed to by employment - whether each of these illnesses were related to her work with Respondent.
Legislation
Administrative Appeals Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Ellison v Comcare (2022) 175 ALD 62
Secondary Materials
Bruce Connolly and John McKessar, ‘Carpal tunnel syndrome. Can it be a work related condition?’ (2009) 38(9) Australian Family Physician
Rogier M van Rijn et al, ‘Associations between work-related factors and the carpal tunnel syndrome-a systematic review’ (2009) 35(1), Scandinavian Journal of Work, Environment & Health
L Solomon, D Warwick, & D Nayagam, (eds), Apley's System of Orthopaedics and Fractures (CRC Press, 9th ed, 2010)
REASONS FOR DECISION
R Cameron, Senior Member.
INTRODUCTION

There are four applications before the Tribunal of which the applicant seeks review.
Application No: 2021/8667 - Carpal Tunnel Syndrome (‘CTS’)
The first application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent on 5 November 2021 (‘the first reviewable decision’). The first reviewable decision affirmed a previous determination made on 17 September 2021 which determined that the respondent was not liable to pay compensation to the applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of Carpal Tunnel Syndrome (claimed for the applicant’s right arm) or aggravation thereof.
Application No: 2022/0493 - De Quervain’s Tenosynovitis (‘DQT’)
The second application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent on 17 January 2022 (‘the second reviewable decision’). The second reviewable decision affirmed a previous determination made on 8 December 2021 that the respondent has no present liability for the applicant’s injuries described as ‘Aggravation of De Quervain’s tenosynovitis of the right thumb’ pursuant to ss 16 and 19 of the SRC Act.

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 Quirk and Comcare (Compensation)

Details

AGLC: Quirk and Comcare (Compensation) [2024] AATA 3621
Case: [2024] AATA 3621
Decision Date: 11 October 2024

CaseChat Overview and Summary

This matter concerned applications by Jacqueline Quirk (the applicant) for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) against Services Australia (the respondent). The applicant claimed compensation for several conditions, including aggravation of underlying carpal tunnel syndrome, De Quervain's tenosynovitis, and aggravation of underlying lateral epicondylitis, alleging these were contributed to by her employment. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether these conditions constituted an "injury" as defined by the SRC Act and, if so, whether they resulted in incapacity or permanent impairment.

The central legal issues before the Tribunal were to determine the diagnoses of the applicant's right upper limb conditions sustained on specific dates, whether these constituted an "injury" under section 5A of the SRC Act, and if so, whether such injury resulted in incapacity for work, the need for medical treatment, or permanent impairment under various sections of the Act, including sections 14, 16, 19, 24, and 27. The Tribunal also needed to assess the extent of any permanent impairment and associated non-economic loss, if applicable.

The Tribunal considered both documentary and viva voce evidence from various medical professionals and the applicant. While the applicant's employment involved significant keyboard and mouse use, the Tribunal ultimately concluded that she had not suffered an "injury" as defined by section 5A of the SRC Act in relation to some of her claims. However, the Tribunal did find that the applicant suffered a time-limited aggravation of an underlying condition of carpal tunnel syndrome and right elbow epicondylitis, with the aggravation ceasing on 2 September 2021.

Consequently, the Tribunal affirmed the fourth reviewable decision in relation to permanent impairment and non-economic loss for carpal tunnel syndrome. The first reviewable decision was set aside, with a finding that the applicant suffered an aggravation of underlying carpal tunnel syndrome until 2 September 2021. The second reviewable decision was affirmed, and the third reviewable decision was set aside, with a finding of aggravation of underlying right elbow epicondylitis until 2 September 2021.

Orders

Orders of the court

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Background

Background to the litigation

It is also surprising indeed, given the contents of Dr Poynter’s report of 9 March 2021 that the procedure was uneventful, being diametrically opposed to the experience that the applicant recounted when giving her evidence, that neither the applicant nor Dr Molloy took steps to correct the record with him.THE FACTS The applicant commenced work in the year 2005 with a Commonwealth Government agency now known as ‘Services Australia’. Initially, she was employed on a part-time basis working approximately 21.75 hours per week. In approximately January 2020, the applicant became a full-time employee. Usually, the applicant commenced working at approximately 8.00 AM until 4.00 PM. She took a 15-minute morning break, 30 minutes for lunch and on most days a 15-minute afternoon break.[16][16] Applicant’s Reply submission dated 7 June 2024, 5, [21]. The duties undertaken by the applicant were described by her as process work carrying out various tasks for Medicare. Mostly the applicant undertook data entry tasks, usually processing Medicare ‘Eclipse’ claims for payment, that were performed using a keyboard and a ‘mouse’, or as she put it ‘keying’. Most of her workdays were spent sitting at an L- shaped desk at a computer with two screens in front of her positioned side-by-side. Her evidence was that she generally used her right-hand when making keyboard entries or using the computer mouse. She described using and manipulating her fingers, hands, and wrists for sustained time spans, when so using the keyboard and the mouse. Eclipse claims were claims made by private health providers. Usually, such claims were processed with a 24-hour turnaround time. To commence processing an Eclipse claim the keyboard operator would select an individual claim from a ‘queue’ of pending claims in the computer that required processing on that day. Processing of Eclipse claims required the reviewing officer, having selected the individual claim, to check such claim to verify that it satisfied the applicable rules with respect to the Medicare item number for such a claim. If the keyboard operator was satisfied that the claim complied with the applicable rules for the item number of the service provided by the health care provider, it would be approved. The software used by Medicare did include several prompts for the operator to adopt when processing an approved claim. This enabled detailed information to be considered by the operator as part of the process. In her evidence, the applicant did suggest that approximately more than 50% of the claims that she received were what she described as ‘complex claims’. By way of example, she stated that if there was a claim made by one patient for surgery, performed on several occasions, it took much longer to process because the system required checking and crosschecking to confirm that the correct item number had been allocated to the specific surgery undertaken. This task did frequently require the applicant to navigate between different screens to complete an appropriate review of such claim. She described it as requiring significant use of the mouse and multiple entries by use of keystrokes.

Evidence

Evidence Before The Court

The fourth application seeks review of a decision made by an authorised delegate of the Chief Executive Officer of the respondent 3 January 2023 (‘the fourth reviewable decision’). The fourth reviewable decision affirmed a previous determination made on 29 November 2022 that the respondent is not liable for the applicant’s permanent impairment and non-economic loss claim, in respect of the condition of right-hand wrist impairment Carpal Tunnel Syndrome sustained on or around 30 March 2020, pursuant to ss 24 and 27 of the SRC Act.THE EVIDENCE BEFORE THE TRIBUNAL There was both viva voce and documentary evidence before the Tribunal. The documentary evidence consisted of a joint tribunal book (‘JTB’) prepared by the parties to the applications together with the ‘T’ documents in each matter which were received in evidence. The following witnesses gave viva voce evidence:(a)The applicant;[2](b)Ms Kristy-Lee Young a Service Support Manager at Services Australia;[3] (c)Dr Tracey Molloy a General Practitioner;(d)Mr Ash Moaveni a Consultant Orthopaedic Surgeon;(e)Dr Neela Janakiramanan a Hand and Wrist Surgeon;(f)Dr Avanthi Mandaleson an Orthopaedic Surgeon;(g)Dr Simon Journeaux a Consultant Orthopaedic Surgeon;(h)Dr Reza Sabetghadam an Occupational Physician; (i)Dr Mark Floyd a Consultant Occupational Physician; and (j)Dr Gautam Khurana a Neurosurgeon.[2] See also, the three witness statements made by the applicant (dated 6 June 2022, 20 June 2023 and 13 November 2023) of the JTB, 239; 246; and 258.[3] See also, the two witness statements of Ms Young dated 1 June 2020 and 5 December 2023.CONCESSIONS MADE BY THE APPLICANT AT THE OPENING OF THE CASE Counsel for the respondent at the commencement of the hearing made several concessions which is appropriate to record at this juncture. With respect to application No. 2021/8667 which he described as the ‘carpal tunnel claim’ and No. 2022/9102 described by him as the ‘right elbow claim’, whilst denying any liability, conceded that the applicant suffered a time-limited aggravation of such injuries running from 31 March to 2 September 2021.[4][4] Transcript of Proceedings, Jacqueline Quirk and Comcare (Administrative Appeals Tribunal, No. 2021/8667, Senior Member R. Cameron, 11 December 2023) 10, [28] – [46]. THE ISSUES BEFORE THE TRIBUNAL The Tribunal considers that the issues arising for its determination have been helpfully distilled in the Statement of Facts, Issues and Contentions (‘SFICs’) lodged with it by the applicant on 19 June 2023. They are as follows:(a)What are the diagnoses of the applicant’s right upper limb injury/condition sustained on:(i)30 March 2020; and(ii)9 March 2021?(b)Has the applicant suffered an ‘injury’ within the meaning of s 5A of the SRC Act?(c)If yes to the above, did the injury result in any incapacity for work and/or impairment pursuant to s 14 of the SRC Act?(i)If so, has the applicant reasonably required medical treatment because of the injury pursuant to s 16 of the SRC Act?(ii)If so, has the applicant been incapacitated for work as a result of the injury pursuant to s 19 of the SRC Act, since that injury and presently?(d)If yes to all or part of the above, has the applicant suffered an injury resulting in permanent impairment pursuant to s 24 of the SRC Act?(i)If so, when assessed in accordance with the approved Comcare guide (Edition 2.1) is the impairment at least 10 per cent?(ii)If so, what is the percentage impairment relevant to the injury and what are the appropriate non economic loss (‘NEL’) scores referable to the Comcare Guides?SOME OBSERVATIONS CONCERNING THE LAY WITNESSES

Decision

Reasons for decision

Therefore, the fourth reviewable decision will be affirmed.CONCLUSIONS ON THE ISSUES By way of conclusion the Tribunal will address each of the issues before it that have been identified in paragraph 10 above. With respect to the diagnoses of the applicant’s right upper limb injury/condition sustained on:(a)30 March 2020; and(b)9 March 2022;the Tribunal refers to the consideration of each of the claimed conditions in these reasons above. As to whether the applicant suffered an ‘injury’ within the meaning of s 5A of the SRC Act the Tribunal has concluded she has not suffered an injury within the meaning of that section. By reason of this conclusion the remaining issues identified in paragraph 10 above do not need to be addressed.ORDERS The first reviewable decision will be set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of carpal tunnel syndrome to 2 September 2021. The second reviewable decision is affirmed. The third reviewable decision will be set aside and in substitution the Tribunal finds that the applicant suffered an aggravation of an underlying condition of right elbow epicondylitis to 2 September 2021 The fourth reviewable decision is affirmed.

Ratio Decidendi

Legal Principle Established

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