Schmidt and Comcare - [2002] AATA 903

DECISION AND REASONS FOR DECISION [2002] AATA 903

ADMINISTRATIVE APPEALS TRIBUNAL ) No A2000/220

) No A2000/463

GENERAL ADMINISTRATIVE DIVISON ) No A2002/45

Re      JOSEFA SCHMIDT
  Applicant
           And    COMCARE
  Respondent
DECISION

Tribunal Mr G A Mowbray

Date22 August 2002
PlaceCanberra

Decision For reasons given orally the Tribunal sets aside the decisions under review, being decisions made by the Respondent dated 30 May 2000, 23 November 2000 and 17 January 2002, and remits the matters to the Respondent for reconsideration with a direction to give effect to the findings of the Tribunal as set out in the reasons for decision that:

(a) since at least October 1999 Ms Schmidt has suffered from fibromyalgia and she continues to suffer this condition today;
(b) Ms Schmidt's fibromyalgia was contributed to in a material degree by her employment, specifically an incident at work on 1 June 1999;
(c) Ms Schmidt continues to suffer from the "sprain of unspecified site of shoulder & upper arm (Right)" and "neck sprain" for which liability was accepted on 6 July 1999;
(d) Ms Schmidt remains totally incapacitated for work in terms of section 4(9)(a) of the Safety, Rehabilitation and Compensation Act 1988;
(e) Ms Schmidt had and continues to have a requirement for psychology services for the purpose of alleviating the abovenamed conditions;
(f) Ms Schmidt's bilateral carpal tunnel syndrome is compensable for the period 10 June 1999 to 17 October 2000 inclusive.
The Tribunal orders the Respondent to pay the Applicant's costs as agreed or taxed.
..............................................
Member
CATCHWORDS
COMPENSATION - fibromyalgia - whether contributed to in a material degree by employment – whether sequel of arm, shoulder and neck sprain – whether still suffers from arm, shoulder and neck sprain – whether incapacitated for work – whether need for psychological treatment

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 14, 16

Re Carson and Telstra Corporation (2001) 33 AAR 351
Lees v Comcare (1999) 29 AAR 350; 56 ALD 84
Comcare v Nichols [1999] FCA 209
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Commonwealth v Borg (1991) 20 AAR 299n
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316; 97 ALR 321; 12 AAR 535
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1; 144 ALR 510
Migge v Wormald Bros. Industries Ltd [1972] 2 NSWLR 29
Cavell v Repatriation Commission (1988) 9 AAR 534
Adelaide Stevedoring Co. Ltd v Forst (1940) 64 CLR 538
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
EMI Australia v Bes [1970] 2 NSWR 238

REASONS FOR DECISION

3 October 2002 Mr G A Mowbray

There are three applications before the Tribunal:

A2000/220, which is a refusal by Comcare to pay for psychology services for an accepted condition of upper right arm and shoulder sprain and neck sprain
A2000/463, a refusal by Comcare to accept a fresh claim for bilateral carpal tunnel syndrome and to amend the accepted…

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 Schmidt and Comcare

Details

AGLC: Schmidt and Comcare [2002] AATA 903
Case: [2002] AATA 903
Decision Date: 22 August 2002

CaseChat Overview and Summary

The case of Schmidt and Comcare was heard by the Administrative Appeals Tribunal, with the central issue being Ms Schmidt's eligibility for compensation under the Safety, Rehabilitation and Compensation Act 1988. Ms Schmidt, who had been employed by Canberra Hospital since 1994, claimed that she suffered a compensable injury on 1 June 1999 while performing her duties. The primary legal issues addressed by the court were whether the injury was a material contributor to Ms Schmidt's fibromyalgia, if the injury was a sequel of an arm, shoulder, and neck sprain, whether she still suffered from the sprain, and if she was incapacitated for work, and required psychological treatment.

The court considered the evidence and concluded that Ms Schmidt's injury did contribute materially to her fibromyalgia. Furthermore, the court found that the injury was indeed a sequel of the arm, shoulder, and neck sprain, and that she still suffered from the sprain. The court also determined that Ms Schmidt was incapacitated for work and required psychological treatment. Based on these findings, the court set aside the reviewable decisions and remitted the matters to Comcare for reconsideration, ensuring that the findings of the Tribunal were taken into account.

The Tribunal ordered Comcare to pay Ms Schmidt's costs in these proceedings as agreed or taxed. This decision underscores the importance of thoroughly examining the evidence and considering the impact of workplace injuries on employees' physical and mental health when determining compensation claims.

Orders

Orders of the court

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Background

Background to the litigation

The hearing for this matter was held on 16, 19 and 20 August 2002. Ms Schmidt was represented by Mr Ben Salmon QC and Comcare was represented by Mr Damien O'Donovan of Counsel. Oral reasons for decision were given on 22 August 2002 setting aside each of the decisions under review. On 3 September 2002 the Tribunal received a request for written reasons for the decision from Comcare's solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.Background Ms Schmidt was born on 9 September 1955 in Madrid, Spain, and came to Australia at the age of 6 years. Although she had a period of previous employment at Canberra Hospital, her most recent work at that Hospital commenced in about 1994. Her medical reports and other evidence indicate that she had suffered a number of accidents and illnesses over the years, including severe burns at the age of 14, injuries to the back, and at least two periods of depression. The incident central to these proceedings occurred on 1 June 1999. In Ms Schmidt's compensation claim, she described it as follows:"Doing a linen round. I tied off a full linen bag & it fell through the skip, on picking it up I felt a sharp pain in my shoulder." Ms Schmidt attended the Accident and Emergency Department of the Hospital and was advised to have physiotherapy. She then returned to work on that day on restricted duties, until being put off work by her general practitioner on 10 June 1999. Since then she has made a number of attempts to return to work on reduced hours but without success.Legislation The relevant sections of the Act are as follows"4 Interpretation(1) In this Act, unless the contrary intention appears:…"disease" means: (a) any ailment suffered by an employee; or (b) the aggravation of any such ailment; being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.…"injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.…"medical treatment" means: (a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or (b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or ……"therapeutic treatment" includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury. …(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened. …""14 Compensation for injuries(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.…""16 Compensation in respect of medical expenses etc.(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.…"

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Comcare has conceded this during the hearing for a closed period from 10 June 1999 to 17 October 2000. I am satisfied that the evidence supports this concession.Conclusions On all the material before me, I conclude The reviewable decisions in each of these matters will be set aside. These matters are remitted to the Respondent for reconsideration in accordance with the direction that the Respondent give effect to the findings of the Tribunal as set out in these statements of reasons. The Tribunal orders the respondent to pay the applicant's costs in these proceedings as agreed or taxed.I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A MowbraySigned: ..................................................................................... AssociateDates of Hearing 16, 19 and 20 August 2002 Date of Decision 22 August 2002Date of Written Reasons 3 October 2002Counsel for the Applicant Mr Ben Salmon QC Solicitor for the Applicant Mr Bill McCarthy, Bradley Allen Counsel for the Respondent Mr Damien O'Donovan Solicitor for the Respondent Ms Andrea Hanley, Phillips Fox

Ratio Decidendi

Legal Principle Established

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