Thelian and Comcare (Compensation)

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Thelian and Comcare (Compensation) [2015] AATA 943 (7 December 2015)

Division

GENERAL DIVISION

File Number(s)

2014/3554

Re

Richard Thelian

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 7 December 2015
Place Sydney

The reviewable decision, being the decision of Comcare made 29 April 2014 denying liability to compensate Mr Thelian for back and abdominal pain, mental state (anxiety), sleep disturbance and kidney stone, is affirmed.

......................[SGD]..................................................

J W Constance
Deputy President

CATCHWORDS

COMPENSATION - injury - disease - ailment - whether the disease was contributed to, to a significant degree, by his employment – whether aggravation of disease contributed to, to a significant degree, by his employment – decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B, 14(1)

CASES

Comcare v Paul Mooi [1996] FCA 1587

REASONS FOR DECISION

Deputy President J W Constance

7 December 2015

A. INTRODUCTION

  1. In September 2013 Mr Thelian made a claim in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of injuries which he claimed he suffered during 7 September 2013 (the day of the 2013 Federal election) and the early hours of the following morning. At that time he was working for the Australian Electoral Commission.

  2. By a decision made on 29 April 2014 Comcare denied liability to compensate him.  Mr Thelian has applied to the Tribunal to review the decision.

  3. For the reasons which follow the decision under review will be affirmed. 

    B. BACKGROUND

  4. Mr Thelian is 49 years old.

  5. In 2011 Mr Thelian was diagnosed as suffering rheumatoid arthritis.  He has not been employed since 2011, apart from his employment on 7 and 8 September 2013.

  6. From 7am on 7 September 2013 until 1.30 am the following day, Mr Thelian was employed by the Australian Electoral Commission as a polling assistant.  His duties included setting up the polling booth in a hall at Fairfield West Public School, marking off the names of voters, distributing ballot papers and counting votes at the conclusion of polling.

  7. On 17 September 2013 Mr Thelian completed a claim for workers’ compensation.[1]  He claimed that he had suffered the following injuries whilst employed by the Commission:

    ·“acute mid to lower back pain;

    ·abdominal pain;

    ·mental state/ anxiety;

    ·small kidney stone detected (CT scan);

    ·not sleeping nights – pass out during day 1 – 3 hours.” [2]

    [1] Exhibit R1 p.23.

    [2] Exhibit R1 p.26.

  8. Mr Thelian claimed that his whole body had been affected by dehydration, but he did not seek compensation for this as a separate injury.  He relied on his suffering dehydration as causing, or aggravating, the development of a kidney stone (renal calculus).

    C. RELEVANT LEGISLATION

  9. Subsection 14(1) of the 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.

  10. In subsection 5A(1) injury is defined to mean:

    (a)

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Details
Case
[2015] AATA 943
Decision Date

CaseChat Overview and Summary

This case involved a claim for workers' compensation by Mr Thelian, who alleged that he suffered injuries during his employment as a polling assistant for the Australian Electoral Commission. The Federal Circuit Court was tasked with determining whether Mr Thelian's injuries were compensable under the relevant legislation. The primary legal issues the court had to decide were whether Mr Thelian had suffered an "injury" as defined in the Act and, if so, whether Comcare was liable to pay compensation. The court considered the definitions of "injury" and "disease" under the legislation and examined the evidence presented by Mr Thelian and the medical experts. The court concluded that while Mr Thelian had suffered muscle soreness due to his employment, the evidence did not support a finding that his employment had contributed significantly to the development of a kidney stone or other alleged injuries.

The court's reasoning was based on the evidence provided by medical experts, particularly Professor Dickson and Professor McGill. The court found that Mr Thelian's muscle soreness was a result of unaccustomed physical activity, which was consistent with the evidence of elevated creatine kinase levels. However, the court was not satisfied that Mr Thelian's employment had made a significant contribution to the development of the kidney stone. The court also noted that the evidence regarding the abdominal pain was insufficient to draw any firm conclusions. The court affirmed the decision of Comcare, which had denied liability to compensate Mr Thelian for the claimed injuries. The decision highlights the importance of the "significant degree" test in determining compensability and the need for clear evidence linking the employment to the alleged injuries.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow the decision under review will be affirmed. B. BACKGROUND Mr Thelian is 49 years old. In 2011 Mr Thelian was diagnosed as suffering rheumatoid arthritis. He has not been employed since 2011, apart from his employment on 7 and 8 September 2013. From 7am on 7 September 2013 until 1.30 am the following day, Mr Thelian was employed by the Australian Electoral Commission as a polling assistant. His duties included setting up the polling booth in a hall at Fairfield West Public School, marking off the names of voters, distributing ballot papers and counting votes at the conclusion of polling. On 17 September 2013 Mr Thelian completed a claim for workers’ compensation.[1] He claimed that he had suffered the following injuries whilst employed by the Commission:·“acute mid to lower back pain;·abdominal pain;·mental state/ anxiety;·small kidney stone detected (CT scan);·not sleeping nights – pass out during day 1 – 3 hours.” [2][1] Exhibit R1 p.23.[2] Exhibit R1 p.26. Mr Thelian claimed that his whole body had been affected by dehydration, but he did not seek compensation for this as a separate injury. He relied on his suffering dehydration as causing, or aggravating, the development of a kidney stone (renal calculus).C. RELEVANT LEGISLATION Subsection 14(1) of the 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 subsection 5A(1) injury is defined to mean:(a)a disease suffered by an employee; or(b)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(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;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. In subsection 5B(1) disease is defined to mean:(a)an ailment suffered by an employee; or(b)an aggravation of such an ailment;that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee. Ailment “means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.[3][3] Subsection 4(1). Significant degree “means a degree that is substantially more than material.”[4] [4] Subsection 5B(3).D. ISSUES In respect of each of the conditions which Mr Thelian claims was caused by his employment it is necessary to decide:(1) has Mr Thelian suffered an “injury” as defined in section 5A of the Act;(2) if so, is Comcare liable to pay compensation in respect of the injury in accordance with section 14 of the Act? E. EVIDENCEMr Thelian’s evidence

Evidence

Evidence Before The Court

The Admission Summary records that Mr Thelian reported that he had had no meal breaks and poor ergonomic conditions when he was working the night before and that he then got myalgia, muscle spasms and stiffness in the morning. It is also recorded that on examination he was “not ill looking”. He was administered fluids intravenously.Evidence of Professor Dickson, Director Ambulatory Care, Liverpool Hospital Professor Dickson provided several reports which appear in exhibit R1 and as exhibits A2-A6 inclusive. He also gave evidence. Mr Thelian has been a patient of Professor Dickson since the late 1990s. During this time Professor Dickson has treated Mr Thelian in respect of his mild autism and ongoing muscular pain. Mr Thelian has an unusual condition known as hyperCKemia which has been present since 1998. It is a condition of an above normal level of creatine kinase (“CK”), an enzyme produced by the muscles. It is associated with complaints of unusual muscular pain. Mr Thelian’s pattern of creatine kinase elevation has been consistent over the years. When Mr Thelian attended Fairfield Hospital on 8 September 2013 complaining of muscle soreness, his CK was unusually high for him. In the opinion of Professor Dickson this confirmed that Mr Thelian had been engaged in some unaccustomed form of muscle activity. Mr Thelian consulted Professor Dickson on 9 September 2013. On the same day Professor Dickson reported to the General Practice Unit:He complains of severe muscle soreness since working for the Electoral Commission ……His abdomen shows no masses. He has mild generalised muscle tenderness. there are no signs of dehydration.Given his sedentary lifestyle, severe muscle soreness and dehydration after a long shift in hot and less than optimal conditions ergonomically is not surprising. His symptoms should resolve over the next week.[6][6] Exhibit R1 p.14. In his report dated 30 October 2013[7] Professor Dickson provided the following diagnosis of Mr Thelian's condition:Acute severe muscle soreness from unusual physical activity, and acute transient dehydration, probably contributing to renal calculus formation. These conditions induced acute anxiety on a background of chronic low grade anxiety. He has taken longer to recover than I initially predicted, probably because of his underlying muscle disorder and rheumatoid arthritis.Professor Dickson stated further:His acute to lower mid-back pain,[sic] abdominal pain, mental state disorder and small kidney stone represent exacerbation of pre-existing conditions as a result of the unusual demands placed upon him during his work on 7 September 2013.[7] Exhibit R1 p.76. In the opinion of Professor Dickson, consistent mildly elevated CK is consistent with a non-psychological cause of muscular pain. The rise in the level of CK and the level of mild renal impairment was entirely consistent with Mr Thelian's initial complaint that he became hot and stressed and experienced back pain while at work. However there is a psychological element present in Mr Thelian's case as he is very angry with the fact that, in his opinion, he was not taken seriously concerning his complaints.

Decision

Reasons for decision

Taking into account this evidence I am not satisfied that Mr Thelian's employment made a significant contribution to the development of the kidney stone. For this reason I am not satisfied that this condition was in “injury” within the meaning of the Act.G. CONCLUSION The reviewable decision, being the decision of Comcare made 29 April 2014 denying liability to compensate Mr Thelian for back and abdominal pain, mental state (anxiety), sleep disturbance and kidney stone, will be affirmed.

Ratio Decidendi

Legal Principle Established

In March 2015 Mr Brown was informed by the Deputy Principal of the School that the chairs used in the School Hall were of adult size and in good condition and were the same chairs used on polling day in 2013. This information was confirmed by Ms Wooley, the Officer in Charge of the polling place on 7 September 2013.F. CONSIDERATIONF.1 Acute mid to lower back pain and abdominal pain There is very little evidence as to the nature and/or cause of the abdominal pain which Mr Thelian says he suffered during his employment by the Commission. However, based on the evidence of Dr Griffin and Dr Knight I am satisfied that this pain experienced by Mr Thelian radiated from his back. On this basis I intend to deal with the abdominal pain as part of the claim for an injury to the back.Has Mr Thelian suffered an “injury” within the meaning of the Act? I am satisfied that Mr Thelian suffered muscle soreness as a result of his prolonged and unaccustomed activity whilst employed by the Commission. I base this finding on the opinions of Professor Dickson and Professor McGill. As to the duration of this condition I prefer the opinion of Professor McGill that the effects of the work performed by Mr Thelian would have resolved within one week. This is consistent with the expectation of Professor Dickson expressed in his report of 9 September 2013. I accept Professor McGill’s explanation that the spike in Mr Thelian's CK level was a usual consequence of unaccustomed exercise. A condition of muscle soreness resulting from activity is clearly not a “disease” as defined in section 5B of the Act. It remains to consider whether it is “an injury (other than a disease” within the meaning of subsection 5A(1). Many of the judgements and decisions dealing with the definition of “injury” in section 5A and earlier provisions of the Act and other workers’ compensation legislation, are concerned with the distinction between what is often referred to as an “injury simpliciter” and a “disease”. However the Full Court of the Federal Court considered the former in Australian Postal Corporation v Burch[18].[18] (1998) 85 FCR 264. The Court said:“As to the second argument, counsel for the appellant accepted that an injury in the ordinary sense did not necessarily require something external to the body. Such a concession was obviously correct. In Kavanagh v The Commonwealth (1960) 103 CLR 547 at 553 Dixon CJ said a rupture of the gullet was an “injury by accident”. Such an episode was “… a sudden destruction of tissue by force or pressure. It is true that the force or pressure was not exerted from without the body, but that I think makes no difference nor does it make any difference if it occurred, as it may have done, as a consequence of another organ of the body, namely the stomach, responding to a virus infection.”However the appellant’s counsel in the present case argued that there could not be an injury in this sense without some “rupture” or “breaking” of some tissue. Here, counsel said, there was merely an occlusion, that is to say a blocking. However the fact that cases such Kavanagh have accepted that an incident involving an internal rupture or breaking was an injury does not mean that, as a matter of law, rupture or breaking is an essential prerequisite to a finding of injury (in the ordinary sense) of an internal nature. In Accident Compensation Commission v McIntosh [1991] 2 VR 253 there is an extensive discussion of the concept of accident (in the ordinary sense) by Murphy J, a judge of great experience in workers’ compensation. In a judgment in which Crockett and Cummins JJ concurred his Honour said (at 263):“Long before the inclusion of these references to ‘disease’ in the definition of ‘injury’ [in the New South Wales legislation considered in O’Neill v Lumbey (1987) 11 NSWLR 640], claims for coronary occlusions, cerebral haemorrhage, ruptured aneurysms, aorta, oesophagus etc. had commonly been made and had succeeded if occurring during a protected period, on the basis that they were ‘injury by accident’, being clearly a physical injury – and accidental – being unexpected by the worker at the time that they occurred: cf. Clover, Clayton & Co. Ltd. v. Hughes [1910] A.C. 242.””[19][19] At pp.268-269.