Sutherland and Comcare (Compensation) - [2024] AATA 3609

Sutherland and Comcare (Compensation) [2024] AATA 3609 (10 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/5695
Re:Rebecca Sutherland
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:10 October 2024
Place:Canberra

The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 and makes a decision in substitution that Comcare remains liable to pay compensation to Ms Sutherland under the Safety, Rehabilitation and Compensation Act 1988.
........[SGD]...........
Member W Frost
Catchwords
WORKERS’ COMPENSATION – sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 – definition of ‘injury’ under subsection 5A(1) SRC Act – ailment - employment ‘contributed to, to a significant degree’ under subsection 5B(1) – disease suffered by an employee – medical treatment required – incapacitated – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 ss 43, 37, 42C
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 67
Cases
Comcare v Power (2015) 238 FCR 187
SRGF and Comcare [2024] AATA 1818
REASONS FOR DECISION
Member W Frost
10 October 2024
INTRODUCTION

The Applicant, Ms Rebecca Sutherland, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision made by the Respondent, Comcare, affirming a determination that it had no present liability to pay her compensation for medical treatment or incapacity under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act1988 (SRC Act), in relation to her previously accepted condition of fibromyalgia.
The Tribunal has considered all of the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the joint hearing bundle and the parties’ evidence and submissions.[1] For the reasons that follow, pursuant to subsection 43(1)(c) of the AAT Act, the Tribunal sets aside the decision under review and in substitution makes a decision that Comcare continues to be liable to pay compensation to Ms Sutherland pursuant to the SRC Act.
[1] Exhibits 1 and 2.
ISSUES
The issues for the Tribunal to decide in this proceeding were:
(a)whether Ms Sutherland suffered an ‘ailment’ as defined in the SRC Act;
(b)if so, whether Ms Sutherland’s ‘ailment’ was ‘contributed to, to a significant degree’, by her employment with the Commonwealth, as required by subsection 5B(1) of the SRC Act in order to constitute a ‘disease’; and
(c)if so, whether Ms Sutherland continued to require medical treatment and was incapacitated for work as a result of that condition.
BACKGROUND
Ms Sutherland is 52 years old.[2]
[2] Exhibit 1, page 7.
On 10 September 2018, Ms Sutherland commenced employment as an executive assistant on a full-time, but non-ongoing, basis with the Department of Communications and the Arts (Department).[3]
[3] Ibid., page 13.
In or around October 2018, Ms Sutherland completed the Department’s ‘Incident/Near Miss’ form and recorded that glass entry gates at her workplace ‘slammed on me’ on 26 October 2018, resulting in a ‘[b]ruise on top of right hand and…

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 Sutherland and Comcare (Compensation)

Details

AGLC: Sutherland and Comcare (Compensation) [2024] AATA 3609
Case: [2024] AATA 3609
Decision Date: 10 October 2024

CaseChat Overview and Summary

This matter concerned an appeal by Ms Sutherland against a decision by Comcare to cease liability for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Ms Sutherland had lodged an incident report alleging that glass entry gates at her workplace struck her, resulting in bruising and pain to her right hand, left foot, and left knee. Subsequently, she developed widespread joint pain, which medical practitioners diagnosed as fibromyalgia. The core dispute revolved around whether Ms Sutherland's condition constituted an "injury" as defined by the SRC Act, and whether her employment had contributed to it to a significant degree.

The Tribunal was required to determine three key issues: first, whether Ms Sutherland suffered an "ailment" as defined by the SRC Act; second, if an ailment was established, whether her employment contributed to it to a "significant degree" as required by subsection 5B(1) of the SRC Act; and third, whether Ms Sutherland continued to require medical treatment and was incapacitated for work as a result of the condition. The SRC Act defines "injury" to include a "disease suffered by an employee," and for a disease to be recognised, the ailment must have been contributed to by employment to a degree substantially more than material.

The Tribunal found that it was common ground between the parties that Ms Sutherland suffered from fibromyalgia, which satisfied the definition of an "ailment" under the SRC Act. Furthermore, the Tribunal noted that in a previous consent decision, the parties had agreed that Ms Sutherland's fibromyalgia was significantly contributed to by her employment. Despite Comcare's subsequent determination to cease liability, the Tribunal considered the majority of the medical evidence, which supported the diagnosis of fibromyalgia and its connection to her employment. The Tribunal concluded that Comcare remained liable to pay compensation to Ms Sutherland under the SRC Act.

The Tribunal set aside Comcare's decision and substituted a decision that Comcare remains liable to pay compensation to Ms Sutherland. The parties were invited to make submissions regarding costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues for the Tribunal to decide in this proceeding were: (a)whether Ms Sutherland suffered an ‘ailment’ as defined in the SRC Act;(b)if so, whether Ms Sutherland’s ‘ailment’ was ‘contributed to, to a significant degree’, by her employment with the Commonwealth, as required by subsection 5B(1) of the SRC Act in order to constitute a ‘disease’; and(c)if so, whether Ms Sutherland continued to require medical treatment and was incapacitated for work as a result of that condition. BACKGROUND Ms Sutherland is 52 years old.[2][2] Exhibit 1, page 7. On 10 September 2018, Ms Sutherland commenced employment as an executive assistant on a full-time, but non-ongoing, basis with the Department of Communications and the Arts (Department).[3] [3] Ibid., page 13. In or around October 2018, Ms Sutherland completed the Department’s ‘Incident/Near Miss’ form and recorded that glass entry gates at her workplace ‘slammed on me’ on 26 October 2018, resulting in a ‘[b]ruise on top of right hand and bump. Sore left foot. Left knee a little sore too’.[4] The nature of the ‘injury/illness’ was described by Ms Sutherland to be a ‘[b]ruised and swollen right hand (less [sic] foot and left knee less injured)’.[5][4] Ibid., pages 15-18. [5] Ibid., page 15. On 30 October 2018, a workstation assessment was performed for Ms Sutherland, which relevantly reported that she:[6] experienced a workplace injury on the Friday the 26 October 2018. Ms Sutherland was struck by the turnstile gait [sic] when entering the building. Following this Ms Sutherland experienced extensive amounts of ‘full body joint’ pain as well as localized symptoms affecting the areas where the turnstile struck her. Ms Sutherland has seen her General Practitioner for assistance with her symptom management.[6] Ibid., page 19. On 1 November 2018, Ms Sutherland first consulted her general practitioner regarding the workplace incident.[7][7] Exhibit 1, page 36 and Exhibit 2, page 144. On 12 November 2018, an ‘Initial Needs Assessment Report’ was provided to the Department in relation to Ms Sutherland, which stated that:[8]Ms Sutherland reported to Rehab Management that on Friday the 26 October 2018 she incurred a workplace injury when exiting the Nishi building on the ground floor. Ms Sutherland reported after swiping her access pass on the gate, she walked through the turnstiles when the glass gate closed on her. Ms Sutherland reported that the gate struck the back of her right hand, left foot and knee on impacted [sic]. Ms Sutherland reported that there was a significant jolt to her body as she was struck by the gate. Ms Sutherland reported she continued about her work schedule however, did notice a significant increase in symptoms of pain and throbbing as her adrenalin from the incident subsided. Ms Sutherland reported that her right forearm and wrist symptoms were significant and resulted in her unable to use this limb for most tasks. Ms Sutherland reported that the work Health and safety team assisted with providing her with an ice pack and assisted her in returning to Goulburn via Taxi. Ms Sutherland advised that she attended Goulburn Hospital to review her right arm as her reported numbness and tingling was of concern. Ms Sutherland advised that a x-ray was taken and confirmed that no fracture was present and was advised to take Ibuprofen and Panadol as required with the supplementation of an ice pack to help manage her symptoms.Ms Sutherland reported to wake during the early hours of the 27 October 2018 experiencing full body aches and pains as well as significant headache. Ms Sutherland advised that her symptoms progressed to included aches and tightness in her shoulders, neck, upper back and lower back. Ms Sutherland advised that the symptoms in her foot have decreased and she is currently wearing flat shoes. Ms Sutherland reported that over following weekend she spent time resting to manage her symptoms however, little improvement in symptoms was made.Ms Sutherland advised that she returned to work on Monday 29 October 2018 at her pre injury duties with frequent rest breaks and was mindful of not overreaching as this exacerbated her symptoms. Ms Sutherland reported that she had been avoiding some strenuous tasked and had noticed that prolonged use of the phone without the use of a head set had increased pain and discomfort in her neck. Ms Sutherland reported that whilst she has not changed her duties she has noticed difficulties managing her workload.Ms Sutherland reported during the initial assessment she will review with her General Practitioner Dr Ruwantha Wijetunga on 3 November 2018 for further guidance as her symptoms have not improved.[8] Exhibit 1, page 25.

Evidence

Evidence Before The Court

Sections 16 and 19 of the SRC Act respectively provide for compensation to be payable 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) and for the payment of compensation to an employee who is incapacitated for work as a result of an injury.EVIDENCELay evidence Ms Sutherland The Tribunal has considered the two written statements made by Ms Sutherland respectively dated 8 April 2020 and 13 September 2024.[53] Ms Sutherland gave evidence at the Tribunal hearing and confirmed adherence to those written statements.[53] Ibid., pages 1-15. Ms Sutherland was referred to the passage in her first statement, from 2020, that her symptoms ‘have not changed in any material fashion since I was first injured in 2018’.[54] She told the Tribunal that statement was correct and that she has now learnt how to ‘pace’ herself, to rest between chores and learnt as much as possible to ‘manage the symptoms with rest’. Otherwise, the ‘symptoms’ have not changed since they first presented after the workplace incident in 2018.[54] Ibid., page 13. Ms Sutherland also agreed that her statement regarding never having ‘had any significant difficulties apart from normal muscular aches and pains’, a ‘good memory’, being ‘good at my job’ was a reference to how she was before the injury.[55][55] Ibid., pages 14-15. Ms Sutherland told the Tribunal that she previously had a fainting issue when her blood was being taken. She can ‘become a bit woozy if I’m not lying down’ and can faint, so she makes sure that she is lying down and there are ‘no problems’. Ms Sutherland said that she used to have ‘episodes’ but they have ‘completely resolved’ and her last ‘fit’ was at age 23. Ms Sutherland clarified that she would faint when she had a blood test and would experience a ‘fit’ when receiving ‘treatment’ in her early twenties, but a neurologist had told her that no medication or other intervention was required. By way of cross-examination, Ms Sutherland agreed that she had tested negative for an epilepsy condition. She was referred to medical records stating, under ‘Inactive Past History, that she usually experienced seizures in response to ‘traumatic situations’ or ‘severe illness’.[56] Ms Sutherland told the Tribunal that if blood was being taken or she was receiving a vaccination and had to sit up, she ‘might faint’, but not always. [56] Ibid., page 128. Counsel for Comcare referred to Ms Sutherland’s first statement, which detailed that:[57]There are references in my medical documents to seizures in the earlier years of my life. There was never a formal diagnosis. when I was born my mother was Rh-negative and I required two blood transfusions. These references relate to specific events when I was a small child such as having a high temperature, having blood taken or having a surgical procedure. Ultimately I grew out of this condition.[57] Ibid., page 2.

Decision

Reasons for decision

Accordingly, the usual course in circumstances where the Tribunal has set aside the decision under review and made a decision that is more favourable to Ms Sutherland under the SRC Act would be for the Tribunal to order that her reasonable costs in this proceeding be paid by Comcare, as agreed or taxed. The parties did not make any submissions on the issue of costs in this proceeding. As a result, unless the Tribunal is informed that the parties have reached agreement as to costs following the publication of this decision, the Tribunal invites Ms Sutherland to make submissions regarding this issue within 21 days of the date of this decision, and for Comcare to provide any reply submissions within 28 days of this decision. The Tribunal will then consider the making of any order in relation to costs pursuant to section 67 of the SRC Act. DECISION The Tribunal sets aside the decision under review pursuant to subsection 43(1)(c) of the AAT Act and makes a decision in substitution that Comcare remains liable to pay compensation to Ms Sutherland under the SRC Act.

Ratio Decidendi

Legal Principle Established

Accordingly, Comcare submitted that Ms Sutherland did not suffer from an ‘injury’ for the purposes of the SRC Act and was therefore not entitled to compensation on and from 22 June 2023, when Comcare determined that it had no present liability under sections 16 and 19 of the SRC Act. As a result, Comcare contended that the Tribunal should affirm the decision under review.CONSIDERATIONDid Ms Sutherland suffer from an ‘ailment’ as defined in the SRC Act? As set out above in these reasons, the definition of ‘injury’ under subsection 5A(1) of the SRC Act includes ‘a disease suffered by an employee’. Subsection 5B(1) of the SRC Act provides that for an employee to have suffered a ‘disease’ it must be ‘an ailment suffered by an employee’. In addition to Ms Sutherland’s treating general practitioners, the following medical practitioners, with particular expertise as a rheumatologist, pain specialist or occupational physician, diagnosed Ms Sutherland with fibromyalgia: Professor Littlejohn, Associate Professor Champion, Dr Reiter, Dr White, Dr Jain, and Dr Seevnarain. At the hearing, and in contrast to his opinion from 2020, Professor Youssef also confirmed that Ms Sutherland met all of the criteria for a diagnosis of fibromyalgia. Conversely, in 2019, Dr Kostos and Dr Cohen were the medical experts that did not diagnose Ms Sutherland with fibromyalgia. It was, however, common ground between the parties that Ms Sutherland suffered from fibromyalgia, which amounted to an ‘ailment’ under the SRC Act. For these reasons, based on the majority of the medical evidence, the Tribunal is satisfied that Ms Sutherland suffered from an ‘ailment’, being fibromyalgia, in accordance with the SRC Act. Was Ms Sutherland’s ‘ailment’ ‘contributed to, to a significant degree’, by her employment with the Department? For the Tribunal to find that Ms Sutherland suffered a ‘disease’, subsection 5B(1) of the SRC Act requires that the ‘ailment’ was ‘contributed to, to a significant degree’ by her employment with the Department. Subsection 5B(3) of the SRC Act states that ‘significant degree’ means ‘a degree that is substantially more than material’. The Federal Court of Australia in Comcare v Power (2015) 238 FCR 187 held that a contribution to a degree that is substantially more than material must necessarily be ‘substantially greater than one which is trivial’.[87] [87] At [78]. By way of a decision made by consent in the 2019 Proceedings, the parties agreed that Ms Sutherland suffered from fibromyalgia, which was significantly contributed to by her employment with the Department, and that she was entitled to compensation pursuant to section 14 of the SRC Act. However, on 22 June 2023, Comcare determined that it had no present liability under the SRC Act to pay compensation to Ms Sutherland as a result of her previously accepted injury.[88] That determination was affirmed by way of a reviewable decision the subject of this Tribunal proceeding.[89] As a result, the Tribunal must determine whether, from 22 June 2023, Ms Sutherland continued to suffer the effects of the previously accepted condition. [88] Exhibit 1, pages 367-370. [89] Ibid., pages 376-380.