Samy and Comcare (Compensation)

Case [2020] AATA 3850

Samy and Comcare (Compensation) [2020] AATA 3850 (2 October 2020)

Division:GENERAL DIVISION

File Number:          2016/4373

2017/4897

2018/0565

2018/3189

2018/4005

Re:Frozny Samy  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member D O'Donovan

Date:2 October 2020

Place:Canberra

In relation to Tribunal application 2016/4373, the reviewable decision dated 12 July 2016 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of ‘subacromial bursitis (left)’ alleged to have been sustained on 18 August 2015, is affirmed.

In relation to Tribunal application 2018/3189, the reviewable decision made on 18 July 2018 which denied liability for compensation under section 14 of the SRC Act in respect of ‘subacromial bursitis (left), impingement of left C6 nerve root and sustained on 18 August 2015 and the effects of the medication related to the related pain’, is affirmed.

In relation to Tribunal application 2017/4897, the reviewable decision dated 28 July 2017, which denied liability for compensation under section 14 of the SRC Act in respect of ‘left shoulder injury’, is set aside. In substitution, the Tribunal decides that the respondent is, pursuant to section 14 of the SRC Act, liable to pay compensation to the applicant for a temporary aggravation, sustained on 7 April 2017, of his underlying shoulder condition.

In relation to Tribunal application 2018/4005, the reviewable decision made on 18 July 2018 which denied liability for compensation under section 14 of the SRC Act in respect of ‘neck injury sustained on 7 April 2017 and the effects of the medication related to the related pain,’ is affirmed.

In relation to Tribunal application 2018/0565, the reviewable decision made on 15 December 2017, which denied liability for compensation under section 14 of the SRC Act in respect of ‘depression and post-traumatic stress disorder’, is set aside. In substitution, the Tribunal decides that the respondent is liable to pay compensation to the applicant for adjustment disorder and major depression, pursuant to section 14 of the SRC Act.

The parties have not been heard in relation to orders for costs. Written submissions in respect of costs may be made within 14 days of this decision. Should no such submissions be received during this time, the Tribunal will order the respondent to pay the applicant’s reasonable costs and disbursements of Tribunal applications 2017/4897 and 2018/0565 (or relating to the incident of 7 April 2017 and the psychological claim).

........................................................................

Senior Member D O'Donovan

Catchwords

WORKERS COMPENSATION – left sided neck and shoulder condition – whether the symptoms suffered are an injury or a disease – whether employment contributed to a significant degree – non-work related factors including the degenerative nature of the condition considered – whether the applicant suffered the injury in the course of employment – where certified fit to return to work – further shoulder injury sustained – struck by lift doors – whether separate injury to shoulder suffered in course of employment – subsequent psychological claim made – whether depression caused by restrictions placed on…

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AGLC
Samy and Comcare (Compensation) [2020] AATA 3850
Case
[2020] AATA 3850
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Samy and Comcare, concerning a claim for workers' compensation. The applicant, Mr. Samy, sought compensation for a left-sided neck and shoulder condition, as well as a subsequent psychological claim. The primary dispute revolved around whether the applicant's physical symptoms constituted an injury or a disease, and if so, whether his employment contributed to it to a significant degree, taking into account non-work-related degenerative factors. A further issue was whether a subsequent psychological condition arose from reasonable administrative action taken in a reasonable manner.

The Tribunal was required to determine several legal issues. Firstly, it had to ascertain whether the applicant suffered an acute injury in the course of his employment on a specific date, or if his condition was a disease significantly contributed to by his employment. This involved assessing the nature of his neck and shoulder conditions, distinguishing between degenerative, constitutional ailments and work-related injuries or aggravations. Secondly, the Tribunal had to consider whether the applicant's psychological condition, allegedly stemming from restrictions on leave and performance management, qualified as an injury under section 5A of the relevant Act, specifically whether the administrative actions taken were reasonable.

In reaching its decision, the Tribunal found that the applicant did not suffer an acute injury at work on 18 August 2015, nor was his degenerative neck and shoulder condition significantly contributed to by his employment. The Tribunal accepted medical evidence suggesting these conditions were constitutional and unlikely to have been aggravated by his work. However, the Tribunal was satisfied that the applicant's psychological deterioration constituted a disease contributed to to a significant degree by his employment, arising from administrative action. Crucially, the Tribunal determined that this administrative action was not reasonable, and therefore, the exclusion for reasonable administrative action did not apply, entitling the applicant to compensation for his psychological condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In relation to the applicant’s psychological deterioration, I am satisfied that it constitutes an ailment that was contributed to, to a significant degree, by the applicant’s employment. I am satisfied that it is a disease suffered as a result of administrative action. However, I am not satisfied that the administrative action was reasonable administrative action taken in a reasonable manner. Accordingly, it meets the definition of an injury provided for in section 5A of the SRC Act and the applicant is entitled to compensation in relation to it.EVIDENCE The matter was part heard on 2 – 4 March 2020 and resumed on 4 June 2020 concluding on 5 June 2020. The evidence in this matter consists of the following:·Five sets of Section 37 Tribunal Documents filed in relation to each Tribunal proceeding;·Report of Dr Ash Takyar dated 18 November 2019;[3][3] Exhibit A1.·Report of Ms Victoria Coghlan dated 31 October 2019;[4][4] Exhibit A2.·Report of Dr Kevin Woods, orthopaedic surgeon, dated 8 August 2017;[5][5] Exhibit A3.·Medical Certificate of Dr Abraham Thomas dated 8 September 2017;[6][6] Exhibit A4.·Medical Certificate from Jamison Medical and Skin Cancer Clinic dated 5 September 2017;[7][7] Exhibit A5.·Medical Certificate from Dr Stephanie Ajulo dated 28 October 2015;[8][8] Exhibit A6.·Medical Certificate from Dr Stephanie Ajulo dated 25 September 2015;[9][9] Exhibit A7.·A bundle of documents titled ‘Applicant’s List of Evidence Materials’ filed with the Tribunal on 8 June 2018 running to 251 pages;[10][10] Exhibit A8.·Email correspondence dated 10 April 2017 from the applicant to Mira with an attached WHS Incident Report;[11][11] Exhibit A9.·Statement from the applicant titled ‘Proof of Evidence’ dated 24 May 2018;[12][12] Exhibit A10.·A bundle of documents relevant to the question of which doctors identified restrictions on the applicant’s ability to type which were extracted from the Tribunal documents for convenience;[13][13] Exhibit A11.·Email correspondence dated 12 September 2014 from Mr Piesley to Security and IT Service Operations Branch;[14][14] Exhibit A12.·A diagram relating to the lift incident as prepared by Ms Hurst during cross examination;[15][15] Exhibit A13.·A second diagram relating to the lift incident as prepared by Ms Hurst during cross examination;[16][16] Exhibit A14.·A diagram relating to the lift incident as prepared by Mr Gibson during cross examination;[17][17] Exhibit A15.·SMS iMessage containing a photo of Endone sent to Mr Denley;[18][18] Exhibit A16.·Email correspondence from the applicant to Mr Denley dated 20 January 2017;[19][19] Exhibit A17.·Email correspondence from Workflow Admin to the applicant dated 25 January 2017;[20][20] Exhibit A18.·Email correspondence from the applicant to Ms Walsh, Mr Denley and Ms West dated 25 January 2017;[21][21] Exhibit A19.·Email correspondence from Mr Denley to the applicant, Ms Walsh and Ms West dated 30 January 2017;[22][22] Exhibit A20.·Email correspondence from the applicant to Mr Denley, Ms West and Ms Walsh dated 16 February 2017 with medical certificates attached;[23][23] Exhibit A21.·Email correspondence from the applicant to Mira dated 12 April 2017 attaching an email chain correspondence between the applicant and Mr Denley from the same day;[24][24] Exhibit A22.·Email correspondence from the applicant to Mr Denley and Ms West dated 31 March 2017 with a medical certificate from Dr Jayasekera attached;[25][25] Exhibit A23.·Email chain correspondence commencing with an email from Mr Denley to the applicant and Ms West dated 17 January 2017;[26][26] Exhibit A24.·Email correspondence from the applicant to Ms West dated 4 April 2017 with a report by Dr Vrancic dated 8 February 2017 and an ergonomic review from APM attached;[27][27] Exhibit A25.·Email correspondence from the applicant to Mira dated 15 March 2016 with an attachment headed ‘Employer to Complete’;[28][28] Exhibit A26.·Supplementary medical report of Dr Ian Stokes dated 15 June 2018 and briefing letter dated 7 February 2018;[29][29] Exhibit R1.·X-Ray of Left Shoulder prepared by Dr Jan Laguna to Dr Hossain dated 10 September 2013 as extracted from the summonsed records produced by Dr Pik;[30][30] Exhibit R2.·Extracts of summonsed records produced by PHC Ginninderra Medical and Dental Centre;[31][31] Exhibit R3.·Email chain correspondence commencing with an email dated 17 January 2017 from the applicant to ‘Reception’ with subject line: Formal report on my (Frozny Samy) condition’ with a medical certificate from Dr Vrancic dated 8 February 2017, a Report by Dr Vrancic dated 25 January 2017 and a further report by Dr Vrancic dated 16 January 2017 attached;[32][32] Exhibit R4.·Medical Certificate from Jamison Medical and Skin Cancer Clinic dated 7 April 2017 extracted from the summonsed records produced by Shoulder2Hand;[33][33] Exhibit R5.·Ultrasound report from Ginninderra Diagnostic Imaging dated 11 April 2017 extracted from the summonsed records produced by Shoulder2Hand;[34][34] Exhibit R6.·Email correspondence from the applicant to Dr Vrancic’s Reception dated 3 July 2017 extracted from the summonsed records produced by Shoulder2Hand;[35][35] Exhibit R7.·Email correspondence from Dr Vrancic to Jennifer Butt undated with an email from Jennifer Butt to Dr Vrancic attached extracted from the summonsed records produced by Shoulder2Hand;[36]·Email correspondence from the applicant to Dr Vrancic’s Reception dated 27 June 2017 extracted from the summonsed records produced by Shoulder2Hand;[37]·Letter from Dr Vrancic to the applicant dated 30 June 2017 extracted from the summonsed records produced by Shoulder2Hand;[38]·Report of Dr Vrancic to Dr Jayasekera dated 26 June 2017 extracted from the summonsed records produced by Shoulder2Hand;[39]·Statement of Phyllis Hurst dated 19 December 2017;[40]·Statement of Anthony Gibson dated 19 December 2017;[41]·Statement of Susan West with attachment dated 29 June 2018;[42]·Statement of Jason Denley dated 29 June 2017 with attachments;[43]·Statement of Jason Denley dated 22 December 2017 with attachments;[44] and·Department of Immigration Leave Records in respect of the applicant extracted from the section 71 documents produced by the employer in 2018/0565.[45][36] Exhibit R8.[37] Exhibit R9.[38] Exhibit R10.[39] Exhibit R11.[40] Exhibit R12.[41] Exhibit R13.[42] Exhibit R14.[43] Exhibit R15.[44] Exhibit R16.[45] Exhibit R17.

Decision

Reasons for decision

Further, in the alternative, the applicant submits he suffers from a disease in the nature of an aggravation of the pre-existing conditions which was significantly contributed to by the nature and conditions of his employment.[100][100] Ibid.Conclusions The first critical question is, did the applicant actually suffer an acute event at work on 18 August 2015? As explained at the outset, I am not satisfied that he did. The early notes concerning the genesis of the applicant’s condition do not suggest that the medical practitioners took a history of an acute injury event. The applicant only started giving a clear description of such an event to health care professionals from January 2016. While I am sure that the applicant now believes that this is what occurred, it is not consistent with the initial reports of the how his pain developed. The GP’s notes suggest a steady building of pain until it was unbearable starting two weeks prior to the date on which he attended the GP. I am satisfied that is how the pain developed.[101][101] For completeness I note that the applicant’s supervisor gave evidence that the applicant reported to him on 18 August 2015 saying that he hurt his shoulder walking the dog. For a number of reasons it is unlikely that the supervisor is accurately recalling events. The respondent confirmed that it did not wish to submit that that is what caused Mr Samy’s injury. I am not satisfied that there was a significant identifiable event which constituted an injury in the course of employment, or an injury arising out of his employment. This rules out theories such as the bursting of calcific tendonitis as the cause of the applicant’s pain. Turning then to whether the applicant suffered an ailment or an aggravation of an ailment significantly contributed to by the applicant’s employment, I am not satisfied that he did. The applicant suffers from a condition which originates in his neck and a condition which originates in his shoulder. The neck condition the applicant suffers from is cervical spondylosis of a degenerative nature with some nerve root entrapment most likely in the region of C6 and C7. The applicant is also suffering from rotator cuff impingement and fluctuating levels of rotator cuff tendinosis. It is these conditions which cause him the left arm pain and paraesthesia from which he suffers. In relation to these conditions I rely on the views of Dr Stokes[102] supported by Dr Fitzgerald, that the applicant’s condition is constitutional. The underlying conditions are constitutional and it is unlikely the applicant’s employment contributed to any aggravation of those conditions. I am conscious that there are doctors with other views. Dr Eaton was not called as a witness and was not cross-examined. He offers a number of theories about what may be causing the applicant’s symptoms. Given that I am not satisfied that there was a major incident at work on 18 August 2015, I could not be satisfied that there was a major tear of a ligament as Dr Eaton theorises in one of his reports. Dr Eaton accepts that cervical spondylosis is a constitutional condition but suggests that the applicant’s workstation may have contributed to his shoulder symptoms’ onset. That opinion is based on speculation that it is quite possible that [the applicant’s] shoulder was held in flexion or abduction more than 60 degrees for extended periods.[103][103] Second Set of Tribunal Documents, T21B, folio 268.

Ratio Decidendi

Legal Principle Established

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