Sonia Lorraine Kennedy and Comcare - [2013] AATA 77

[2013] AATA 77

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/1886, 2011/4806
Re	Sonia Lorraine Kennedy
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	15 February 2013
Place	Melbourne

The Tribunal affirms the decisions under review.

..............................[sgd]..........................................

G. D. Friedman, Senior Member

COMPENSATION – employment as domestic cleaner – back pain – aggravation of compensable condition – whether effect of injury has ceased

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 4(9), 5A(1), 14(1), 16(1), 19(2)

Casarotto v Australian Postal Commission [1989] FCA 116

REASONS FOR DECISION

G. D. Friedman, Senior Member

15 February 2013

Sonia Kennedy commenced employment as a cleaner for the Department of Defence in Melbourne in 2002. On 30 April 2004 the respondent accepted liability for compensation for lumbar sprain suffered by Ms Kennedy on 9 March 2004 (the 2004 injury). On 10 October 2007 the respondent accepted liability for compensation for synovitis and tenosynovitis (left) (shoulder tenosynovitis) and aggravation of lumbar sprain suffered by Ms Kennedy on 23 April 2007 (the 2007 injury). She resigned in November 2007. On 26 October 2011 the respondent made a reviewable determination that Ms Kennedy does not presently suffer from the effects of the 2004 injury and that compensation was no longer payable (application 2011/4806). On 22 March 2011 the respondent made a reviewable determination that Ms Kennedy does not presently suffer from the effects of the 2007 injury (application 2011/1886).

LEGISLATIVE BACKGROUND

Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) 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.

…

In s 4(1) of the SRC Act injury is defined as:

injury has the meaning given by section 5A.
In s 5A(1) of the SRC Act injury is defined as:
…
(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), that is an aggravation that arose out of, or in the course of, that employment;

Incapacity for work is defined in s 4(9) of the SRC Act as an incapacity suffered as a result of an injury, either an incapacity to engage in any work or an incapacity to engage in work at the same level as immediately before the injury happened.
Section 16(1) of the SRC Act provides for an entitlement to compensation for medical treatment:

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.

Section 19(2) of the SRC Act provides for…

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: [2013] AATA 77
Decision Date

CaseChat Overview and Summary

Sonia Lorraine Kennedy, the applicant, commenced proceedings against Comcare, the respondent, to determine whether she was entitled to ongoing compensation for two separate workplace injuries. The applicant had worked as a cleaner for the Department of Defence before resigning in November 2007 due to back pain. Comcare had previously accepted liability for compensation for two injuries: a lumbar sprain in 2004 and an aggravation of lumbar sprain and shoulder tenosynovitis in 2007. The Tribunal was tasked with determining whether Ms Kennedy currently suffered from the effects of these injuries and, if so, whether she was entitled to medical expenses and incapacity benefits.

The primary legal issues before the Tribunal were whether Ms Kennedy presently suffered from the effects of the 2004 and 2007 injuries and, if so, whether she was entitled to ongoing compensation for medical expenses and incapacity. The Tribunal examined the medical evidence and Ms Kennedy's statements to determine the impact of each injury on her ongoing health.

After reviewing the medical evidence and Ms Kennedy's testimony, the Tribunal found that while Ms Kennedy had a pre-existing degenerative condition of the lumbar spine, the 2004 injury caused only a temporary aggravation of this condition. The Tribunal concluded that the effects of the 2004 injury had ceased, and therefore Ms Kennedy was not entitled to ongoing compensation for medical expenses or incapacity. Regarding the 2007 injury, the Tribunal found that it had caused a temporary aggravation of Ms Kennedy's pre-existing lumbar spine condition, but that this aggravation had also ceased. Consequently, Ms Kennedy was not entitled to ongoing compensation for this injury either.

The Tribunal affirmed the decisions under review, finding that Ms Kennedy was not entitled to ongoing compensation for either injury. The Tribunal's decision was based on the evidence that the effects of both injuries had ceased, and that Ms Kennedy's ongoing back pain was degenerative and constitutional in nature, rather than a result of the workplace injuries.

Orders