Sandra Kelman and Prosegur Australia Pty Ltd - [2014] AATA 675

[2014] AATA 675

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/1587

Re

Sandra Kelman

APPLICANT

And

Prosegur Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Deputy President K Bean
Professor P Reilly AO, Member

Date 21 August 2014

Date of written
reasons 16 September 2014

Place Adelaide
The decision under review is affirmed.

........... [Sgd] ....................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Whether applicant suffered an aggravation of her thumb osteoarthritis – Whether any aggravation resulted in incapacity or impairment – Short-term increase in symptoms when performing work duties – Applicant experienced pain with certain activities whether at work or at home – Pain experienced was the result of the underlying condition itself – No incapacity for work – No impairment – Decision under review affirmed.

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5B, 14

CASES
Commonwealth v Beattie (1981) 53 FLR 191

Re Smith and Comcare (1995) 39 ALD 715
Tippett v Australian Postal Corporation [1998] FCA 335
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Re McKinnon and Australian Postal Corporation [2001] AATA 297
Australian Postal Corporation v Bessey [2001] FCA 266
Re Fyfe and Comcare [2000] AATA 769
Re Hopper and Comcare [2001] AATA 53

Bowman v Comcare Australia [2000] FCA 88
REASONS FOR DECISION
Deputy President K Bean
Professor P Reilly AO, Member
16 September 2014

The applicant, Mrs Kelman, is currently 51 years old. In approximately April 2008, she commenced employment with the respondent, then known as Chubb Security Services Limited (Chubb), working in the respondent’s cash handling room at Hindmarsh, in Adelaide. As a cash handler, Mrs Kelman was responsible for packing automated teller machine (ATM) money cassettes with monetary notes, among other duties. Mrs Kelman initially worked five days a week, but her hours progressively decreased to the point where during 2012 she was only working six hours, two days per week.
In about February 2012, Mrs Kelman began to experience pain in her thumbs. She did not immediately report this, as she expected it to settle. However, the pain persisted and Mrs Kelman sought medical advice and treatment. X-rays taken in September 2012 subsequently revealed that Mrs Kelman was suffering from osteoarthrosis of the joints at the base of both her thumbs “slightly more marked on the left side”.
On 25 September 2012, Mrs Kelman lodged a claim for workers’ compensation[1] for “bilateral thumb CMCJ osteoarthrosis”.
[1] Exhibit 1, T7/19.
Having considered that claim and sought medical opinion in relation to it, on 2 November 2012, the respondent determined that it was not liable to pay compensation in respect of Mrs Kelman’s “bilateral thumb base pain”.[2] Mrs Kelman subsequently sought reconsideration of that determination and on 22 February 2013,[3] the respondent issued a reconsideration decision affirming the determination that the respondent was not liable to pay compensation in respect of “bilateral thumb base pain”.
[2] Exhibit 1, T18/65.
[3] Exhibit 1, T22/84.
On 11 April 2013, Mrs Kelman applied to this Tribunal for review of the reconsideration decision, giving rise to…

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.

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Details

Case: [2014] AATA 675
Decision Date: 16 September 2014

CaseChat Overview and Summary

Sandra Kelman, a former employee of Chubb, sought compensation from Prosegur Australia Pty Ltd for alleged aggravation of her thumb osteoarthritis resulting from her employment. The dispute was heard and determined by the Fair Work Commission. The primary legal issues involved whether Mrs Kelman's condition was aggravated by her employment and, if so, whether this aggravation resulted in any incapacity or impairment sufficient to warrant compensation under section 14 of the relevant Act.

The Commission examined the medical evidence and found that while Mrs Kelman experienced increased pain during her work duties, this pain was due to her underlying condition rather than an aggravation of it. Three rheumatologists concurred that her condition was constitutional and unrelated to her employment. They agreed that any increase in pain from her work duties subsided within a short period, returning her condition to its baseline state. This meant that Mrs Kelman’s symptoms, while distressing, did not reflect a worsening of her underlying condition. The Commission concluded that since her pain did not result in any incapacity or impairment, she was not entitled to compensation.

In affirming the decision under review, the Commission emphasized that the pain Mrs Kelman experienced was a manifestation of her pre-existing condition rather than an aggravation caused by her employment. Given the medical evidence and the statutory provisions, the Commission held that Mrs Kelman had not established a compensable claim. Consequently, the decision denying her compensation was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mrs Kelman further confirmed during her evidence that she had not at any time required time off work due to her symptoms, and although she had requested alternative duties, in the event these were not provided. She said she had not worked for Chubb after November 2012 as she was a casual employee and had not been given any shifts after that.The Medical Evidence As to whether Mrs Kelman’s duties with Chubb had led to increased symptoms or contributed to any ongoing aggravation of her arthritis, in the event there was no real disagreement between the doctors. We were fortunate to have the benefit of concurrent evidence from three of the rheumatologists who have provided reports in this matter: Doctors Hill, McGill and Potter. They had conferred immediately before giving their evidence and it quickly became apparent when they commenced giving evidence that they had reached consensus on the main issues. They all agreed that Mrs Kelman was suffering from osteoarthritis of the joints at the base of her thumbs. More significantly, as we have alluded to above, they also agreed that this condition was constitutional and that the condition itself had not been caused or contributed to by her employment with Chubb. On the question of aggravation, the Tribunal outlined the relevant parts of the evidence given by Mrs Kelman to the doctors. On the basis of that history, all three doctors essentially agreed that they accepted that Mrs Kelman had increased pain in her thumbs whilst carrying out her work duties, due to the nature of those duties. However, they also considered that within a relatively short time of completing her duties on any given day, and certainly within the 40 minutes specified by Mrs Kelman as the time it took her increased symptoms to settle, Mrs Kelman’s condition would have returned to its “baseline” or underlying state. In other words, the pain Mrs Kelman experienced while working was not indicative of any change to the underlying pathology of her condition, or reflective of any worsening or acceleration, or any other change, to the condition. Once her pain had settled, Mrs Kelman’s condition had returned to its pre-existing or underlying state, which was driven and determined by constitutional factors. The doctors all also agreed that Mrs Kelman’s condition now was the same as it would have been in the absence of her employment with Chubb, and indeed we inferred from their evidence that this had been the case since she last worked for Chubb. Further, the evidence of all three doctors was consistent with the proposition that whilst Mrs Kelman had experienced pain and discomfort when carrying out her duties, that increased pain and discomfort, which ceased when she stopped working, did not itself result in any incapacity for work. As the concurrent oral evidence of the doctors effectively “superseded” their written reports, we see no need to canvass the contents of those reports, particularly given there is substantial agreement between the doctors on the main issues.CONSIDERATION

Decision

Reasons for decision

We should add in case it is not clear from what we have already said that we accept Mrs Kelman's evidence, including with respect to the increased pain she experienced in her hands when performing her duties at Chubb. We also accept that she genuinely believed at the time she gave her evidence, and may still believe, that her condition was either contributed to or aggravated by her work at Chubb. However, for the reasons we have given, on the basis of the medical evidence before us and having regard to the terms of the legislation, we do not consider that she has established an entitlement to be paid compensation.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

As the concurrent oral evidence of the doctors effectively “superseded” their written reports, we see no need to canvass the contents of those reports, particularly given there is substantial agreement between the doctors on the main issues.CONSIDERATION The main issue for our determination therefore is whether the short-term increase in symptoms which the doctors accept Mrs Kelman experienced when performing her duties is sufficient to result in compensation liability pursuant to s 14 of the Act. To be more specific, the first issue is whether Mrs Kelman has suffered an “aggravation” or a “series of aggravations” of her osteoarthritis to which her employment significantly contributed. If so, the second issue is whether this has resulted in any incapacity or impairment so as to give rise to compensation liability pursuant to s 14 of the Act. We will accordingly address the first of these issues before turning to the second.Did Mrs Kelman suffer an “aggravation” of her osteoarthritis? We have carefully considered the authorities to which we were directed by the parties. Having done so, we note that the relevant principles which emerge from them can be summarised as follows:·Pain brought on by work activity may constitute an aggravation of a pre-existing non-compensable injury even though no pathological change takes place;·Whether it does or does not is a question of fact;[7]·An injury will potentially be aggravated if the experience of the injury is increased or intensified;[8]·The symptoms of an injury, that is the experience of the injury, is part of the injury in respect of which compensation is payable;[9]·If the pain from an underlying condition is aggravated, that is, increased or intensified, as a result of an employee’s employment, and this results in incapacity, then the employee will probably have suffered a compensable injury;[10]·If an employee comes to work with a pre-existing condition which causes them to suffer a particular type of pain with certain activities whether they are at work or not, the pain suffered is not properly regarded as an aggravation, but as an effect of the underlying condition itself.[11][7] Commonwealth v Beattie (1981) 53 FLR 191.[8] Tippett v Australian Postal Corporation [1998] FCA 335 at p. 5.[9] Tippett at p. 5. [10] Tippett at p. 6.[11] Tippett at p. 6, and Beattie at p. 201. We should acknowledge that we were initially disposed to accept on the evidence that Mrs Kelman’s experience of increased pain and discomfort while carrying out her work duties and for a short time thereafter should be regarded as an “aggravation”, or a “series of aggravations” of her underlying condition. However, having carefully analysed the applicable authorities and the principles which emerge from them, we have ultimately concluded that the pain Mrs Kelman experienced while undertaking her duties was not an “aggravation” of her underlying condition as that term is properly understood. Rather, the pain Mrs Kelman experienced was the result of the condition itself, and her experience of that condition was not in fact increased or intensified by her work activities.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1587
Re	Sandra Kelman
APPLICANT
And	Prosegur Australia Pty Ltd
RESPONDENT

Tribunal	Deputy President K Bean Professor P Reilly AO, Member
Date	21 August 2014
Date of written reasons	16 September 2014
Place	Adelaide