Ross and Comcare (Compensation)

Case [2020] AATA 4350

Ross and Comcare (Compensation) [2020] AATA 4350 (2 November 2020)

Division:GENERAL DIVISION

File Number:          2018/3951

Re:Vivienne Ross

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:2 November 2020

Place:Perth

The Reviewable Decision dated 23 May 2018 is affirmed.

......................[Sgd]..................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

COMPENSATION – Workers’ Compensation – Commonwealth employee – whether liability should be accepted under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant suffers from an injury – degenerative osteoarthrosis condition aggravated by workplace incident – stress related fracture to right hip which resulted in the need for a hip replacement – whether a disease – whether an injury other than a disease – whether an ailment – aggravation of an ailment – causation – whether contributed to, to a significant degree, by employment – Reviewable Decision affirmed

LEGISLATION

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 4(1), 5A(1), 5A(1)(a), 5A(1)(b), 5B, 5B(1), 5B(1)(a), 5B(1)(b), 5B(2), 5B(2)(a), 5B(2)(b), 5B(2)(c), 5B(2)(d), 5B(2)(e), 5B(3), 14, 14(1)

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

CASES

Australian Postal Corporation v Burch (1998) 85 FCR 264

Comcare v Mooi (1996) 69 FCR 439

Comcare v Power (2015) 238 FCR 187

Comcare v Reardon (2015) 148 ALD 356

Commonwealth v Beattie (1981) 35 ALR 369

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Tippett v Australian Postal Corporation (1998) 27 AAR 40

Vo and Comcare [2005] AATA 773

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

2 November 2020

SUMMARY

  1. The Applicant is seeking review of a decision of Comcare dated 23 May 2018 (T29) (the Reviewable Decision), made under the Safety, Rehabilitation and Compensation Act 1988 (Cth). All subsequent references to legislative provisions are from this Act unless otherwise indicated.

  2. The Reviewable Decision affirmed a determination of Comcare dated 24 April 2018 (T25) to refuse to accept liability under s 14(1) for the Applicant’s claim for “[s]tress related fracture which has resulted in need for a hip replacement (right side)” (T10/27). The determination letter referred to the claim as a “claim for osteoarthrosis, localized(right)” (T25/92) whereas the Reviewable Decision described it as “osteoarthrosis of the right hip”.

  3. The Applicant believes that she suffered a stress fracture on 5 December 2017 from the repetitive climbing of stairs on a maritime vessel as part of her employment for a Commonwealth government department (the Department).

  4. Comcare accepts that the Applicant has a degenerative osteoarthrosis condition which was aggravated by the workplace incident in December 2017. However, Comcare submits that it was not significantly contributed to by the Applicant’s employment with the Commonwealth, and so Comcare should not accept liability under s 14(1) (R1/5).

  5. For the reasons below, the Tribunal agrees with Comcare’s submission and has found that the correct or preferable decision is to affirm…

Continue reading Ross and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Ross and Comcare (Compensation) [2020] AATA 4350
Case
[2020] AATA 4350
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare to refuse to accept liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for the applicant's claim for a "stress related fracture which has resulted in need for a hip replacement (right side)". The applicant, an APS6 officer, alleged she suffered a stress fracture on 5 December 2017 due to repetitive stair climbing on a maritime vessel as part of her employment. Comcare accepted that the applicant had a degenerative osteoarthrosis condition that was aggravated by the workplace incident, but submitted that her employment did not contribute to this aggravation to a significant degree. The Administrative Appeals Tribunal was required to determine whether Comcare should accept liability for the applicant's condition.

The primary legal issue before the Tribunal was whether the applicant's degenerative osteoarthrosis, aggravated by a workplace incident involving repetitive stair climbing, constituted an "injury" for the purposes of section 14 of the Act, and if so, whether her employment contributed to that injury to a significant degree. The Tribunal considered whether the condition was a "disease" or an "injury other than a disease" or an "ailment" and whether the aggravation of a pre-existing ailment was compensable. The central question was one of causation: whether the applicant's employment significantly contributed to the aggravation of her osteoarthrosis.

The Tribunal agreed with Comcare's submission that liability should not be accepted. It reasoned that while the applicant suffered from degenerative osteoarthrosis and this condition was aggravated by the workplace incident, the evidence did not establish that her employment with the Commonwealth contributed to this aggravation to a significant degree. The Tribunal noted that the applicant had pre-existing mild to moderate degenerative arthrosis in her right hip, as indicated by radiology reports prior to the incident. The Tribunal found that the repetitive stair climbing, while causing soreness, did not meet the threshold for significant contribution to the aggravation of the underlying degenerative condition.

Consequently, the Tribunal found that the correct and preferable decision was to affirm Comcare's Reviewable Decision to refuse to accept liability. The Tribunal's orders were to affirm the Reviewable Decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons below, the Tribunal agrees with Comcare’s submission and has found that the correct or preferable decision is to affirm the Reviewable Decision.BACKGROUND The Applicant commenced employment with the Department on 6 June 2000 (T10/32). At the relevant time she was employed as an APS6 (Australian Public Service Level 6) officer (T10/32). On 2 November 2017, the Applicant underwent an ultrasound of her anterior right hip joint and an x-ray of her pelvis and right hip. The radiology report described her symptoms as “‘deep’ pain at the anterior right hip joint”. The findings included that there was “mild-moderate degenerative arthrosis at the right hip joint”, and “[m]ild degenerative changes noted at the left hip”. The comment at the conclusion of the report was that the Applicant’s “symptoms are felt most likely secondary to right hip joint degenerative arthropathy” and that a steroid injection had been scheduled for 3 November 2017 (T4/15). A further radiology report dated 3 November 2017 recorded that the Applicant underwent a CT guided injection under local anaesthetic to her right hip joint (T5/16). On approximately 2 December 2017 the Applicant was deployed to a maritime vessel as part of her employment with the Department (T8/20; T28/106). The Applicant made a Workers’ Compensation Claim on 17 January 2018 (T10/31). As noted above, her claim was for a “[s]tress related fracture which has resulted in need for a hip replacement (right side)” and stated that the affected body part was her “[h]ip” (T10/27). In her claim form, in response to the question, “What happened and how were you injured?”, the Applicant answered the following (T10/27):Required to move between interviewing location and command centre. This involved repetative [sic] climbing of stairs (approximately 120 on at least 21 occasions) on 5/12/2017. I noticed soreness as the day wore on however was not able to rest. The Applicant stated in her claim form that she first sought treatment for the injury on 15 December 2017 (T10/29). A first certificate of capacity completed by an emergency department doctor dated 29 January 2018, confirmed that the Applicant sought treatment and was assessed on 15 December 2017. This certificate recorded that the Applicant had a sudden onset of pain when she “[s]tepped awkwardly walking down steps at work”. The symptoms were described as “[p]ainful right hip” and “markedly decreased mobility in R[ight] hip”. The diagnosis was stated as “osteoarthritis right hip – acute exacerbation”, with a note that the Applicant had been referred to Dr Vara Mukundala, an Orthopaedic Surgeon, for further assessment (T12/38-39). In a letter addressed to the doctor on duty at the medical centre attended by the Applicant dated 19 December 2017, Dr Mukundala diagnosed the Applicant with “[a]cute onset of osteoarthritis of the right hip”. The letter stated that the Applicant was admitted to hospital on 15 December 2017 and that (T7/18):She had an acute onset of pain in the right hip. After examining and investigating her, I have ruled out an infected hip. MRI scan has shown that she has stress fracture of the femoral head. There are also changes of osteoarthritis of her right hip. I have advised her to have a total hip replacement on the right side.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Applicant is seeking review of a decision of Comcare dated 23 May 2018 (T29) (the Reviewable Decision), made under the Safety, Rehabilitation and Compensation Act 1988 (Cth). All subsequent references to legislative provisions are from this Act unless otherwise indicated. The Reviewable Decision affirmed a determination of Comcare dated 24 April 2018 (T25) to refuse to accept liability under s 14(1) for the Applicant’s claim for “[s]tress related fracture which has resulted in need for a hip replacement (right side)” (T10/27). The determination letter referred to the claim as a “claim for osteoarthrosis, localized(right)” (T25/92) whereas the Reviewable Decision described it as “osteoarthrosis of the right hip”. The Applicant believes that she suffered a stress fracture on 5 December 2017 from the repetitive climbing of stairs on a maritime vessel as part of her employment for a Commonwealth government department (the Department). Comcare accepts that the Applicant has a degenerative osteoarthrosis condition which was aggravated by the workplace incident in December 2017. However, Comcare submits that it was not significantly contributed to by the Applicant’s employment with the Commonwealth, and so Comcare should not accept liability under s 14(1) (R1/5). For the reasons below, the Tribunal agrees with Comcare’s submission and has found that the correct or preferable decision is to affirm the Reviewable Decision.BACKGROUND The Applicant commenced employment with the Department on 6 June 2000 (T10/32). At the relevant time she was employed as an APS6 (Australian Public Service Level 6) officer (T10/32). On 2 November 2017, the Applicant underwent an ultrasound of her anterior right hip joint and an x-ray of her pelvis and right hip. The radiology report described her symptoms as “‘deep’ pain at the anterior right hip joint”. The findings included that there was “mild-moderate degenerative arthrosis at the right hip joint”, and “[m]ild degenerative changes noted at the left hip”. The comment at the conclusion of the report was that the Applicant’s “symptoms are felt most likely secondary to right hip joint degenerative arthropathy” and that a steroid injection had been scheduled for 3 November 2017 (T4/15). A further radiology report dated 3 November 2017 recorded that the Applicant underwent a CT guided injection under local anaesthetic to her right hip joint (T5/16). On approximately 2 December 2017 the Applicant was deployed to a maritime vessel as part of her employment with the Department (T8/20; T28/106). The Applicant made a Workers’ Compensation Claim on 17 January 2018 (T10/31). As noted above, her claim was for a “[s]tress related fracture which has resulted in need for a hip replacement (right side)” and stated that the affected body part was her “[h]ip” (T10/27). In her claim form, in response to the question, “What happened and how were you injured?”, the Applicant answered the following (T10/27):Required to move between interviewing location and command centre. This involved repetative [sic] climbing of stairs (approximately 120 on at least 21 occasions) on 5/12/2017. I noticed soreness as the day wore on however was not able to rest.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.