Stancevska and Comcare (Compensation)

Case [2023] AATA 15

Stancevska and Comcare (Compensation) [2023] AATA 15 (12 January 2023)

Division:GENERAL DIVISION

File Number(s):      2018/7330

2018/7331

2018/7332

Re:Ms Snezana Stancevska

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Ms A E Burke, AO Member

Date:12 January 2023

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that Ms Stancevska is entitled to compensation for her claimed injuries of cervical spondylosis and carpal tunnel syndrome pursuant to section 14 of the SRC Act.

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

Ms A E Burke, AO Member

Catchwords

WORKER’S COMPENSATION –printers assistant – note printing Australia – denial of liability – whether injury is work related – conflicting medical evidence – decision set aside

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Australian Postal Corporation v Burch (1998) 85 FCR 264
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Cross and Comcare [2018] AATA 52
Crouch and Comcare [2013] AATA 608
Dunstan v Comcare [2011] FCAFC 108
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Mellor v Australian Postal Corporation [2009] FCA 504
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Reardon and Comcare [2015] AATA 360
Ross and Comcare [2020] AATA 4350
Smith v Comcare [2013] FCAFC 65

Vo and Comcare [2005] AATA 773

REASONS FOR DECISION

Ms A E Burke, AO Member

12 January 2023

  1. The Applicant, Ms Stancevska, applied for review of a decision by the Comcare Review Officer dated 6 August 2018 which denied liability for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The determination denied liability for Ms Stancevska’s claimed conditions of cervical disc prolapse with radiculopathy, an unspecified right shoulder condition, bilateral wrist condition and aggravation of bilateral wrists conditions, as they found the evidence did not demonstrate that they were contributed to, to a significant degree, by her employment at Note Printing Australia (NPA).

  2. On 5 October 2018 Ms Stancevska sought review of that decision by the General Division of the Administrative Appeals Tribunal, stating that she disagreed with the decision in fact and law and her worker’s compensation claim should be accepted.

    BACKGROUND

  3. Ms Stancevska commenced working at NPA on 28 April 2014, first in a casual position in the finishing department in a packaging role, and in November 2015 she moved to an ongoing full-time role in the Print Hall as a Printer G5/ Print Hall Operator/ Print Assistant. She was terminated by NPA on 8 August 2019 on the basis that she was unable and unlikely to be able to perform her permanent position. Prior to working for NPA, Ms Stancevska worked in security for Coles for about two years and then worked for 17 years at The Age newspaper as a machine operator in the print centre until her position was made redundant. Ms Stancevska commenced at NPA three days after she was made redundant by The Age.

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Details
AGLC
Stancevska and Comcare (Compensation) [2023] AATA 15
Case
[2023] AATA 15
Decision Date

CaseChat Overview and Summary

Ms Stancevska sought review of a decision by Comcare denying her worker's compensation claim. The dispute concerned whether Ms Stancevska's claimed injuries, including cervical spondylosis and carpal tunnel syndrome, were work-related. The matter was heard by Ms A E Burke, AO Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Ms Stancevska had suffered an injury or disease, and if so, whether her employment at Note Printing Australia (NPA) contributed to that condition or its aggravation to a significant degree. Alternatively, the Tribunal had to consider if she had suffered an injury other than a disease, and if that injury arose out of, or in the course of, her employment with NPA. If either of these questions were answered affirmatively, the Tribunal then had to decide if Comcare was liable to pay compensation.

The Tribunal considered conflicting medical evidence and Ms Stancevska's account of events, including an incident on 30 January 2017 where she was bumped by a co-worker, and a fall on 6 February 2017. Ms Stancevska reported experiencing pain in her right shoulder following the bumping incident, and further injury to her right knee, right shoulder, and arm after the fall. She also described developing numbness in her hands and experiencing pain in her wrists and restricted neck movement over time, which medical investigations later identified as right C7 nerve root impingement. The Tribunal found that Ms Stancevska's employment at NPA contributed to her conditions to a significant degree.

The Tribunal set aside the original decision under review and substituted a new decision finding that Ms Stancevska is entitled to compensation for her claimed injuries of cervical spondylosis and carpal tunnel syndrome pursuant to section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

Orders

Orders of the court

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Background

Background to the litigation

On 5 October 2018 Ms Stancevska sought review of that decision by the General Division of the Administrative Appeals Tribunal, stating that she disagreed with the decision in fact and law and her worker’s compensation claim should be accepted. BACKGROUND Ms Stancevska commenced working at NPA on 28 April 2014, first in a casual position in the finishing department in a packaging role, and in November 2015 she moved to an ongoing full-time role in the Print Hall as a Printer G5/ Print Hall Operator/ Print Assistant. She was terminated by NPA on 8 August 2019 on the basis that she was unable and unlikely to be able to perform her permanent position. Prior to working for NPA, Ms Stancevska worked in security for Coles for about two years and then worked for 17 years at The Age newspaper as a machine operator in the print centre until her position was made redundant. Ms Stancevska commenced at NPA three days after she was made redundant by The Age. On 30 January 2017, Ms Stancevska reported an incident which had occurred between her and a co-worker, Mr Smith, in which their right shoulders came into contact with each other as they were walking in opposite directions in the corridor outside of the Print Hall. On the day of the incident, Ms Stancevska reported the incident to the Health and Safety Representative and subsequently to Human Resources. Ms Stancevska described experiencing shoulder pain from this bumping incident. On 3 February 2017, Ms Stancevska attended general practitioner, Dr Vivek Patel, for treatment following an “accident at work”. The medical notes record: she was bumped by a person she is very stressedhaving palpitations she is having pain in her Rt. shoulder Examination: right shoulder pain on movement On 7 February 2017, Ms Stancevska attended general practitioner, Dr Jim Ristevski, for treatment. A report by Dr Ristevski dated 28 May 2018 certified that she attended on 7 February 2017 and records: “She stated missed a step on 6 February 2017 and fell injuring her right knee, right shoulder and arm”. On 13 February 2017 a Full Incident Report was completed for the injury which occurred on 2 February 2017 in which Ms Stancevska fell in the workplace. The Report recorded: “Suzie missed a step on the Nota Screen and hit both knees on the mat covering the concrete floor. Right knee and shoulder sore, the right knee swelled up”. The report noted that the immediate action taken to rectify was “First aider applied ice pack to the right knee”. Ms Stancevska lodged several Comcare claims for her claimed injury:(a)On 27 March 2018 Ms Stancevska lodged a Comcare claim for neck, right shoulder, arm and both wrists. In the form she noted that when she got injured, she was “performing manual physical work over time” and that she had knocked the right shoulder on 30 January 2017 and slipped and fell from the step at work on 6 February 2017. (b)On 7 April 2018 Ms Stancevska lodged a further Comcare claim for wrists, hands and right shoulder. In the form she stated that when she got injured she was “performing manual physical work and slipped and fell from the stairs, onto the floor, landing on my hands and knees”. She stated that this happened on 6 February 2017 and over the course of her employment.(c)On the same date Ms Stancevska lodged another Comcare claim for right shoulder and neck. In the form she noted that when she was injured she was “performing manual physical work over time and knocked by a co-worker on the right side of my neck and shoulder”. She stated that this happened on 30 January 2017 and over the course of her employment.(d)Also on the same date, Ms Stancevska lodged a final Comcare claim for the condition of “repetitive prolonged leaning movement of shoulders, hands and wrist movements” with the physical injury being to arms, wrists, and shoulders. In the form she noted that the tasks she was doing when she was injured was “performing manual physical work; knocking up work; heavy lifting and deboxing” and what happened was “repetitive prolonged work over the course of my employment”.

Evidence

Evidence Before The Court

The key issues for determination are:(a)Has Ms Stancevska suffered an injury (disease) and, if so, has her employment at NPA contributed to that condition(s) or the aggravation of that condition(s) to a significant degree?(b)Has Ms Stancevska suffered an injury (other than a disease) and, if so, did it arise out of, or in the course of, her employment with the NPA?(c)If the answer is yes to either of the above, is Comcare liable to pay compensation?Evidence before the TribunalWitness Statements Ms Stancevska Ms Stancevska’s statement of 12 December 2019 states:On 30 January 2017 I was going from the print hall to an area along a passage way to get a key. As I was coming back Smith slammed into me. I looked up just before contact and saw that he had put his shoulder down and I believed that this showed he was braced for contact and that it was deliberate. After making contact with me Smith didn’t stop or say sorry he just kept on walking. After the contact which I felt immediate pain in my right shoulder. I told my colleague on the press where I was working what had happened and I also spoke to Yvonne who was the Health and Safety Rep. She said to me that she had had problems with Smith previously and that I should go and report this incident to Human Resources.Before going to Human Resources, I also told my then supervise on the floor, Mark, about this incident.I also spoke with the foreman Dean and he said leave it with me but he also told me to go to Human ResourcesAfter work I went to Human Resources and saw a woman there called Val. I explained to her what had happened in October and also about the bumping incident that day. When I saw Val I was crying my right shoulder was very sore. I remember her making notes of the interview and that I spent about 30-40 minutes in her office. She told me to leave with her and she would have a look at the video footage of the incident.I attended work the following day and in fact kept working my usual hours until going to the GP after work on Friday of that week.I went to a GP and saw Dr Vivek Patel because my right shoulder was still painful. I told him what had happened, that I had been bumped into and that I was feeling very stressed because of the earlier incidents and the way in which Smith had been behaving towards me. I remember that the GP prescribed some medication for me and told me to put some ice packs on my right shoulder.…In about January 2018 I started having physiotherapy and I had about five physio sessions on a treatment plan and then about ten sessions that I paid for myself. I did feel that the physio did seem to release some of the tension in the top of my left shoulder. I had about 10-15 physiotherapy sessions in 2018 and also 2019.…On 6 February 2017 I fell down the stairs from the machine that I was working on, I fell onto my right knee and outstretched arms. My right shoulder was still painful from the original bumping incident in January and I felt that it became more painful after I fell on 6 February 2017.I had about two days off after the fall and also completed an incident report.After the fall at work I went to see Dr Jim Ristevka on 7 February 2017, the day after the fall. My right shoulder and arm were not getting better so I went to the doctor again and was sent for an ultrasound of my right shoulder which was done on 27 April 2017. On 1 May 2017 I also had an x-ray of my right shoulder.…Shortly after the bumping incident I had started getting numbness in my hands more so on the right.I am right hand dominant.The numbness on my right side was down the right arm into the three fingers of my right hand starting with the little, ring and middle finger. I also had some numbness in my left hand but it wasn’t going down the arm, it was more in the palm and wrist.Because my right shoulder was not getting any better I was sent for a right shoulder ultrasound on 15 May 2017 but was told that it didn’t really show much if anything in the right shoulder which was the same as the earlier ultrasound and x-ray.I continued going to work and doing my usual duties.One job that I found particularly aggravating my right arm and right hand numbness was a task that was called ‘knocking up’. This is where we prepare reams of the paper used to print the notes on and we have to shake the sheets to release them so that they don’t stick together and jam in the machine. When I had first started at Note Printing we used to spray the table that we did the knocking up because it made the paper slide more easily but this was stopped because we were told that the spray was affecting the notes. I felt that as a result of not using the spray knocking up became much more difficult.…Towards the end of 2017 I went to an osteopath about my right shoulder pain and she suggested that in fact my pain might be coming from my neck. She wrote back to my doctor suggesting that I should have a neck MRI.I had an MRI of my cervical spine done on 9 February 2018 and I was told that I had right C7 nerve root impingement and that this would explain why I was getting the numbness in the fingers my right hand.I still have pins and needles going down my right arm, pain in my right wrist and the three fingers that I mentioned earlier in my right hand are now completely numb.I also have restricted neck movement and I get frequent headaches.…I had right wrist carpal tunnel surgery done on 23 July 2019. I have found that it has not helped at all with my right arm and hand pain.

Decision

Reasons for decision

The Tribunal, having considered all the evidence before it, determines that Ms Stancevska is entitled to compensation for her claimed injuries of cervical spondylosis and carpal tunnel syndrome pursuant to section 14 of the SRC Act.decision The Tribunal sets aside the decision under review and in substitution decides that Ms Stancevska is entitled to compensation for her claimed injuries of cervical spondylosis and carpal tunnel syndrome pursuant to section 14 of the SRC Act.

Ratio Decidendi

Legal Principle Established

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