Robinson and Comcare - [2007] AATA 2035

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2035
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2560

GENERAL ADMINISTRATIVE DIVISION )

Re KAREN ROBINSON

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Dr J D Campbell
Date11 December 2007
PlaceSydney

Decision The decision under review is affirmed.

..................[sgd]..........................
Dr J D Campbell
Member

CATCHWORDS
WORKERS COMPENSATION – reporting of chronic pain right side of neck, right shoulder and right limb – liability accepted for neuralgia, neuritis and radiculitis, unspecified (cervical) (right) and synovitis and tenosynovitis (forearm) (right) – claim for permanent impairment of right upper limb – accepted diagnosis self reported chronic pain syndrome – condition accepted as permanent – on the balance of probabilities condition not demonstrated to have arisen out of or in the course of employment or the accepted compensable condition – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 – sections 16, 19 and 24
Comcare v Fielder (2001) 115 FCR 328
REASONS FOR DECISION

11 December 2007 Dr J D Campbell

1.      Ms Robinson, an employee of the Health Insurance Commission, lodged a claim for compensation on 11 May 2000, having completed the claim on 3 April 2000. Ms Robinson stated in the claim that she commenced experiencing pain in the “cervical spine, right shoulder, elbow and wrist and forearm” on 2 August 1999, with the pain being experienced when performing work duties and after such activities (T3). Medical certificates issued by Dr Tarrant (the attending general practitioner) on 20 March 2000, 6 April 2000, 13 April 2000 and 27 April 2000 (T161) nominated that Ms Robinson was suffering from right cervical neuralgia and tendonitis right forearm.
2.      Liability was accepted by Comcare in relation to the claim on 28 June 2000, after Comcare had received and considered a report from Dr Tarrant, dated 26 June 2000 (T9). In allowing the claim, Comcare detailed the accepted conditions as “neuralgia, neuritis and radiculitis, unspecified (cervical) (right)” and “synovitis and tenosynovitis (forearm) (right)” (T10).
3.      Ms Robinson lodged a claim for permanent impairment on 27 January 2006, nominating the permanent impairment as “chronic pain right neck, shoulder, elbow and forearm and low back pain. Pain exacerbated with minimal use of right arm” (T126). The claim was rejected by Comcare on 8 June 2006 on the grounds that Ms Robinson did not qualify for an impairment rating of 10 per cent pursuant to Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Impairment Guide”) (T134). On 22 November 2006 Comcare affirmed the earlier decision of 8 June 2006, and in so doing concluded that Ms Robinson, while continuing to report symptoms in the right side of her neck radiating to the shoulder and arm and then into the forearm, was not suffering from the effects of her compensable condition, and even if that finding was in error, any assessment of her right upper limb impairment was less than 10 per cent pursuant to Table 9.4 (T155).
Issues
4.      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.

Continue reading Robinson and Comcare

Details

AGLC: Robinson and Comcare [2007] AATA 2035
Case: [2007] AATA 2035
Decision Date: 11 December 2007

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Robinson versus Comcare involved a claim for permanent impairment of the right upper limb. The dispute arose from a condition the claimant self-reported as a chronic pain syndrome, with accepted diagnoses of neuralgia, neuritis, radiculitis, synovitis, and tenosynovitis. The claimant sought to establish that these conditions had arisen out of or in the course of employment. The legal issues before the court were whether the condition was indeed permanent and if it could be demonstrated, on the balance of probabilities, that the condition arose out of or in the course of employment or was directly related to the accepted compensable condition.

The court reviewed the evidence presented, including medical reports and the claimant's testimony. It considered whether the claimant had met the burden of proof to demonstrate a causal link between the employment and the claimed condition. The court found that while the condition was accepted as permanent, there was insufficient evidence to establish that the condition arose out of or in the course of employment or was related to the compensable condition. The court concluded that the decision under review was correct and aligned with the legal principles and relevant authorities.

Consequently, the Federal Court affirmed the decision under review, maintaining that the claimant had not demonstrated, on the balance of probabilities, that the condition arose out of or in the course of employment or was directly related to the compensable condition. This decision was consistent with the provisions of the Safety, Rehabilitation and Compensation Act 1988 and the relevant case law.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		KAREN ROBINSON