Shirreff and Comcare (Compensation) - [2020] AATA 1710

Shirreff and Comcare (Compensation) [2020] AATA 1710 (11 June 2020)
Division:GENERAL DIVISION
File Number: 2018/0073
Re:Jenny Shirreff
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:11 June 2020
Place:Melbourne

The Tribunal affirms the decision under review.
. .............[sgd].................................................
Dr Damien Cremean, Senior Member
Catchwords
WORKERS COMPENSATION – claimed conditions of rheumatoid arthritis and right elbow epicondylitis/angiofibroblastic tendinosis – pain suffered during work tasks – pain suffered outside of work tasks – underlying condition – pain is response of underlying condition to tasks performed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety Rehabilitation and Compensation Act 1988
Cases
Australian Postal Corporation v Bessey [2001] FCA 266
Balacki and Comcare [2013] AATA 768
Comcare v Reardon [2015] FCA 1166; 148 ALD 356
Commonwealth v Beattie (1981) 53 FLR 191
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
11 June 2020
BACKGROUND

The Applicant, Ms Jenny Sherriff, applies to review a decision made on 16 November 2017 by the Respondent affirming a determination made on 24 July 2017 that she is not entitled to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“Act”) for her claimed conditions of rheumatoid arthritis and right elbow epicondylitis on the ground that her claimed conditions were not significantly contributed to by her employment.
HEARING
The hearing in this matter was conducted over three dates: 3 July, 22 November and

4 December 2019.
At the hearing the Applicant was represented by Mr Hull, of Peter Hull & Associates, and the Respondent was represented by Mr J Lenczner of Counsel.
The Applicant gave affirmed evidence in person, and Mr Peter Rehfisch, orthopaedic surgeon, gave affirmed evidence by telephone. The Respondent called Associate Professor (AP) Evan Romas who gave affirmed evidence by telephone.
LEGISLATIVE PROVISIONS
Section 14 of the Act relevantly provides:
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.
The word injury is defined in s 5A(1) of the Act as a disease or an injury (other than a disease) suffered by an employee that is a physical or mental injury arising out of or in the course of the employee’s employment, or the aggravation of such a physical or mental injury.
The word disease is defined in s 5B(1) of the Act as an ailment suffered by an employee or the aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment. The expression significant degree is defined as a degree substantially more than material. An ailment is defined in s 4(1) as meaning any physical or mental ailment, disorder or defect.
ISSUES
As pointed out by Counsel for the Respondent, in this matter there are no witness statements and no Statements of Issues, Facts and Contentions.
It is not in issue that the Applicant has suffered the conditions…

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 Shirreff and Comcare (Compensation)

Details

AGLC: Shirreff and Comcare (Compensation) [2020] AATA 1710
Case: [2020] AATA 1710
Decision Date: 11 June 2020

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against a decision by Comcare. The Applicant claimed compensation for conditions including rheumatoid arthritis and right elbow epicondylitis, also referred to as angiofibroblastic tendinosis. The core of the dispute was whether these conditions, or the pain experienced by the Applicant, were caused or contributed to, to a significant degree, by her employment as a customer services officer. The decision was made by Dr Damien Cremean, Senior Member, of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the Applicant's claimed conditions, specifically rheumatoid arthritis and right elbow epicondylitis, were caused or contributed to by her employment. A further issue arose regarding whether the pain experienced by the Applicant constituted a compensable injury in itself, distinct from the underlying conditions. The Tribunal was required to assess the evidence presented by the Applicant and expert evidence to determine the causal link between her work activities and her medical conditions.

The Tribunal accepted the Applicant was a truthful witness and that she experienced significant pain during her work, particularly when using her keyboard and mouse. However, the Tribunal found that the Applicant's rheumatoid arthritis was not significantly contributed to by her employment. Regarding the epicondylitis, the Tribunal preferred the expert evidence of AP Romas, who concluded that the Applicant suffered from angiofibroblastic tendinosis, a condition that was constitutional or degenerative in nature, with age being a major risk factor, and not caused by her work. Crucially, the Tribunal distinguished between pain experienced at work and a condition being *made worse* by work. It found that while the Applicant's pain increased during work, this was an exacerbation of an underlying condition rather than the work causing or contributing to the condition itself. Therefore, the pain condition was not considered a compensable injury. The Tribunal also placed no weight on untested evidence from Dr Boers and Mr Green.

Accordingly, the Tribunal affirmed the decision under review, finding that the Applicant's claimed conditions were not caused or contributed to to a significant degree by her employment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issue therefore for me is whether the Applicant’s claimed condition was caused by or contributed to, to a significant degree, by her employment. The Applicant maintains that the right elbow epicondylitis is. The Respondent denies this.EVIDENCE Applicant The Applicant gave evidence that she worked for the Department of Human Services as a customer services officer. She described the nature of her work as telephone work in the call centre and processing claims work. She would use the mouse and keyboard throughout her day processing claims or use a headset and take calls from customers. She was working four days per week and had been doing so for 12 years. Over that time her role had not changed. The Applicant stated that in the second half of 2016 she developed issues with her wrist at work. She was getting a lot of pain whilst using her keyboard and mouse. After a workplace assessment, and after receiving a new mouse and keyboard, the pain in her wrist started going up her arm and towards her elbow. Massaging seemed to make her pain worse. She then went to her general practitioner (“GP”) who suspected she had tennis elbow. She was prescribed a cortisone injection and physiotherapy. The Applicant said “there was no real relief” after the injection, although she continued with the physiotherapy. At this point she was also having “Humira” injections and “Plaquenil” for rheumatoid arthritis, which she had suffered from for about six years. She tried rest at home and further cortisone injections but there was no significant improvement. She noticed her arm had become heavy. Finally, the Applicant went to see an orthopaedic surgeon, Mr Rehfisch, who operated on her arm on 30 January 2018. She was in hospital for a day and rested at home for five weeks or so. The Applicant stated that her arm was much better, and she had not had a problem with it since. However, the Applicant said she knew that it was her work that caused her arm condition: “I know that attending work every day was, in my terms, exacerbating the pain that I had in my arm every day.” She said that “by the time I finished a shift at work, I would nearly have to carry my arm with me into the car.” She said she felt the pain got worse in her arm when she reached for the keyboard while working. In cross examination, the Applicant said that by the end of the working day “my pain levels were seven or eight… In the mornings [it] might’ve been a four or a five.” Certain activities at home, such as chopping vegetables or washing her hair, would make her pain worse. She agreed that she had been treated in the past for varicose veins and now suffered conditions which include asthma and fibromyalgia. She described her role in more detail, that at work she would be coding in information and generally would work to a limit of 20 minutes per customer with “80 to 85 per cent is [working] with your hands and the 10 to 15 per cent would be reading.” It was in telephony work, where a customer calls the call centre, that the most intensive mouse work occurred. When doing telephony work, she would be going from screen to screen and coding. She said that she considered that she felt an exacerbation of her condition every day whilst she was at work, compared to when she was at home. Cross examination of the Applicant continued at the resumed hearing

Decision

Reasons for decision

I have not been assisted in any of these regards by the untested views of Dr Anthony Boers or those of the physiotherapist Mr Timothy Green. Neither was called to give evidence and it would be hazardous to rely on untested material in my view. Therefore, I place no weight on this evidence.CONCLUSION Accordingly, in my view the decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

For these reasons as I have summarised, and others, Mr Lenczner submitted that the decision under review should be affirmed. CONSIDERATION One thing made very clear in this case is the need for carefully prepared witness statements and submissions. This case went into its third day because both were lacking. I do not take issue with the parties themselves on this. But clearly without written witness statements and submissions the Tribunal’s time is taken up and it adds to the costs of the parties. Practitioners should be made aware of this. I indicated in exchanges with Mr Hull that the Applicant seemed truthful and I accept that she is a witness of truth. While I accept the Applicant’s evidence, it is a different matter whether I find she qualifies for compensation under s 14 of the Act. This is not the place for me to decide the vexed question about the relationship between modern workplace activities and various kinds of injuries such as repetitive strains. In a general way, and only that, I can see it to be plausible that keyboard and mouse work in the modern workplace can bring about various conditions or contribute to their occurrence. I am in no doubt that the Applicant has suffered a debilitating and painful condition. For this she had surgery which has proven successful. I note in closing that the Applicant did not press her claim for rheumatoid arthritis, and I find that the Applicant's rheumatoid arthritis was not caused by or contributed to to a significant degee, her employment. The case was run as one where it was claimed the Applicant’s epicondylitis was caused or contributed to by her repetitive mouse work in particular, but keyboard work as well. It was only at the final submissions stage that it clearly emerged that her pain was itself claimed to be a compensable injury. I shall deal with the latter first. While I allow that claim to be advanced, in my view it must fail. The evidence is plain to me, in the way in which the case was put at that final stage, that this is a clear example of a condition becoming worse and not being made worse by work.[4] There is no doubting that the Applicant was in increased pain at work. I find that her pain condition became worse at work and was not made worse because of it.[5] That means her pain condition is not itself a compensable injury.[4] See Comcare v Reardon [2015] FCA 1166; 148 ALD 536.[5] See also Australian Postal Corporation v Bessey [2001] FCA 266 at [6]. This last point is connected with a finding which I make in relation to the Applicant’s work. Broadly, her work routines were as she described them. I accept that. I also accept that much of her work was repetitive. Further I accept that there is a temporal connection between the pain of her condition and her workplace activities. However, I accept the evidence in that regard of AP Romas. I prefer his evidence as it was thoroughly researched and expertly given. I find on the basis of his evidence, that the Applicant suffered an underlying medical condition: angiofibroblastic tendinosis. In accepting AP Romas’ evidence, I find this condition was not caused by her work but was constitutional or degenerative. I accept the major risk factor in her case is age, but he also mentioned in his report obesity.