Tipping and Comcare (Compensation) - [2023] AATA 457

Tipping and Comcare (Compensation) [2023] AATA 457 (22 March 2023)
Division:GENERAL DIVISION
File Number(s): 2019/6139; 2022/2998
Re:David Tipping
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:22 March 2023
Place:Canberra

The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
......................[SGD]......................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – where the Respondent determined no liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 – employment with Defence – ‘injury’ or ‘disease’ – two claims – multitude of claimed physical injuries – back, neck and right knee injury – primary injuries – consequential injuries – ergonomic workplace assessments and support – soft tissue injuries – mysofascial pain syndrome – nerve entrapment – where medical evidence overwhelming – employment did not contribute – ‘to a significant degree’ – decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14, 71
Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
Comcare v Power [2015] FCA 1502
Comcare v Wuth [2018] FCAFC 13
Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482
Rodriguez v Telstra Corporation Ltd [2005] FCA 30
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228
REASONS FOR DECISION
Member W Frost
22 March 2023
INTRODUCTION

The Applicant, Mr David Tipping, applied to the Administrative Appeals Tribunal (Tribunal) for review of two decisions by the Respondent, Comcare, affirming its determinations denying liability to pay him compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for multiple claimed physical conditions.
Mr Tipping contended that he suffered injuries as a result of his employment with the Department of Defence (Defence). Comcare declined liability because it found that Mr Tipping did not suffer an ‘injury’ for the purposes of the SRC Act.
The Tribunal has considered the more than 2,700 pages of documents filed in this proceeding, comprising all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the parties’ ‘Hearing Bundle’ and ‘Supplementary Hearing Bundle’ of documents, and the documents produced by Defence pursuant to section 71 of the SRC Act, together with the parties’ submissions at the hearing.[1] For the following reasons, the Tribunal affirms Comcare’s decisions because it has found that Mr Tipping’s claimed injuries fail to meet the requirements of the SRC Act. Comcare is therefore not liable to pay Mr Tipping compensation under the SRC Act.
[1] Exhibits 1 to 6.
ISSUES
The issues for the Tribunal to decide in this proceeding are:
(a)whether any ‘ailment’ or ‘aggravation’ suffered by Mr Tipping was contributed to, to a significant degree, by his employment with Defence, so as to constitute a ‘disease’ under the SRC Act?; and
(b)is Comcare liable to pay compensation to Mr Tipping in accordance with section 14…

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 Tipping and Comcare (Compensation)

Details

AGLC: Tipping and Comcare (Compensation) [2023] AATA 457
Case: [2023] AATA 457
Decision Date: 22 March 2023

CaseChat Overview and Summary

This matter concerned appeals by Mr Tipping against decisions by Comcare to reject his claims for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Mr Tipping had claimed a multitude of physical injuries, including back, neck, and right knee injuries, and sought compensation under section 14 of the SRC Act. The core of the dispute revolved around whether these claimed ailments constituted an "injury" or "disease" as defined by the SRC Act, and crucially, whether they were contributed to, to a significant degree, by his employment with Defence.

The Tribunal was required to determine two primary legal issues. Firstly, whether any ailment or aggravation suffered by Mr Tipping was contributed to, to a significant degree, by his employment with Defence, thereby qualifying as a "disease" under the SRC Act. Secondly, arising from the first, the Tribunal had to decide whether Comcare was liable to pay compensation to Mr Tipping in accordance with section 14 of the SRC Act.

The Tribunal's reasoning was heavily influenced by the overwhelming medical evidence presented. It found that none of Mr Tipping's claimed conditions were contributed to, to a significant degree, by his employment with Defence. While acknowledging that Mr Tipping may have experienced some pain and symptoms during and after his employment, the Tribunal concluded that this was insufficient to establish the necessary causal link required by the SRC Act. Consequently, the Tribunal found that Mr Tipping had not suffered a "disease" or "injury" as defined by sections 5B and 5A of the SRC Act, respectively.

Accordingly, the Tribunal affirmed Comcare's decisions under review, finding that Comcare was not liable to pay compensation to Mr Tipping pursuant to section 14 of the SRC Act. Mr Tipping's claims were therefore unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

The issues for the Tribunal to decide in this proceeding are:(a)whether any ‘ailment’ or ‘aggravation’ suffered by Mr Tipping was contributed to, to a significant degree, by his employment with Defence, so as to constitute a ‘disease’ under the SRC Act?; and(b)is Comcare liable to pay compensation to Mr Tipping in accordance with section 14 of the SRC Act?BACKGROUND Mr Tipping is 56 years old.[2] [2] Exhibit 3, page 7. In the early 1990s, Mr Tipping was involved in a motorcycle accident which resulted in an arthroscopy of his right knee.[3][3] Ibid., page 67. Between January and September 2007, Mr Tipping was employed by the then Department of Environment and Water Resources.[4][4] Exhibit 1, page 577. On 1 June 2007, Mr Tipping received a medical certificate from Dr Peter Ragg, General Practitioner, for a soft tissue injury to his right shoulder and neck due to recurrent computer use at work.[5] Mr Tipping was recommended to receive physiotherapy and massage, but also declared fit to continue his pre-injury duties.[6][5] Exhibit 3, page 138. [6] Ibid. On 11 March 2011, Mr Tipping commenced employment with Defence.[7] [7] Exhibit 1, page 622. On 28 August 2012, SRC Solutions provided a ‘Basic Workstation Assessment Report’ in relation to Mr Tipping, which noted that, on that date, his chair, desk, monitor, keyboard and mouse were adjusted.[8] It also recommended that Mr Tipping be provided with a headset for his telephone and a footrest.[9][8] Exhibit 3, page 119.[9] Ibid. On 30 May 2013, Dr Melissa Rice, Osteopath, certified Mr Tipping as unfit for work on 30 and 31 May 2013 due to ‘acute lumbar pain’.[10][10] Ibid., page 123. On 20 November 2014, Dr Adrian Wright, General Practitioner, provided a medical certificate, noting that Mr Tipping was suffering from bilateral rotator cuff tendinopathy and was advised not to work that day through to 25 November 2014. It was also stated that Mr Tipping ‘may need work station assessment so does not work with arms at or above shoulder height’ and that his elbows would also need to be ‘tucked in with keyboard work so no reaching’.[11] [11] Ibid., page 124. On 21 July 2015, SRC Solutions again assessed Mr Tipping and provided a ‘Comprehensive Workstation Assessment Report’, which relevantly stated that he reported that ‘95% of his workday involves computer based tasks’ and he was due to visit the United States of America (USA) to study for nine months.[12] At the assessment, several adjustments were made to Mr Tipping’s workstation.[13] The report also noted that:[14]The following health concerns were reported at the time of assessment: Mr Tipping reports ongoing intermittent flare ups of neck and back pain. He reported right shoulder and neck pain several months ago which led to the workstation assessment being organised. The shoulder has now settled. He undergoes regular massage and osteopathy to manage his symptoms along with exercise such as swimming. He finds sitting for long periods can aggravate low back pain.[12] Ibid., pages 130-133. [13] Ibid. [14] Ibid., page 130.

Evidence

Evidence Before The Court

Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’. EVIDENCEMr Tipping The Tribunal has considered the written statement filed by Mr Tipping in this proceeding, totalling 106 pages excluding annexures, together with his Statement of Issues, Facts and Contentions, comprising 45 pages.[64] [64] Exhibit 1, pages 577-727 (excluding annexures). Mr Tipping gave evidence in-person at the hearing of the proceedings and confirmed adherence to his written statement. By way of cross-examination, Mr Tipping was referred to his first workers’ compensation claim form from 2019, which stated that he first noticed his symptoms on 1 June 2018.[65] Mr Tipping told the Tribunal this date was used as a matter of expediency; he had ‘no understanding’ of his injury at the time. [65] Exhibit 3, pages 7-13. Mr Tipping agreed that there was no record of him suffering any specific right knee symptoms between 1 June 2018 and the last day he worked for Defence on 31 August 2018. He further agreed to attending Mr David Halpin, Exercise Physiologist, on 29 August 2018 complaining of aching at the back of the right leg, especially around the calf area, but Mr Tipping also said that he believed he was referred for assessment of his back and shoulder tendonitis. However, Mr Tipping agreed that there was no mention of these symptoms in the clinical notes, only a reference to his calf. Mr Tipping disagreed with the suggestion that, on another attendance with Mr Halpin on 13 September 2018 he again did not record anything in relation to any knee symptoms. Mr Tipping further did not agree that travel to Japan after he resigned from Defence in 2018 was in a private capacity and said it could be construed as a ‘continuing obligation’ to fulfil his professional development goals he had set while employed with Defence. He agreed that, as a result of the walking he did at this conference, he had increased pain in the right leg and a hotel concierge recommended a shiatsu massage and acupuncture, both of which he obtained. The following morning, Mr Tipping woke with a greatly swollen right knee and was in a lot of pain. Mr Tipping agreed that an osteopath report obtained after this travel did not mention right knee pain. Mr Tipping conceded that the pain was in his right calf and not the knee. Mr Tipping was referred to his attendance on Dr James Bodel, Orthopaedic Surgeon, and the history taken that he had developed an acutely swollen right knee whilst attending the conference in Japan, but that Mr Tipping attributed the exacerbation of right knee symptoms to the massage. Mr Tipping told the Tribunal that was an ‘association represented’ to Dr Bodel and he communicated ‘what happened from my perspective’. Despite stating in his written statement that cramping in his right calf experienced while flying was during a period of private travel in July or August 2018, he told the Tribunal that he did not have cramping during the July travel and that he ‘didn’t have a leg problem at that time’ and that the trips were to fulfil ‘a professional development obligation’ or during ‘sick leave’, so both were said to be related to employment.

Decision

Reasons for decision

Based on the available evidence, the Tribunal has found that none of Mr Tipping’s claimed conditions were contributed to, to a significant degree, by his employment with Defence. While Mr Tipping may have experienced some pain and other symptoms from time to time at work, and subsequently after his employment ended, this is not sufficient in itself to establish that his claimed conditions were contributed to the requisite degree under the SRC Act by his employment. As set out above in these reasons, the weight of expert medical evidence does not establish that Mr Tipping’s conditions were contributed to, to a significant degree, by his employment with Defence. Again, for the avoidance of doubt, and as set out above in these reasons, the Tribunal accepts this evidence. As a result, the Tribunal finds that Mr Tipping has not suffered a ‘disease’ under section 5B of the SRC Act and therefore has not suffered an ‘injury’ pursuant to section 5A of the SRC Act. For these reasons, Mr Tipping’s claims in the 2019 Proceeding and the 2022 Proceeding for compensation under the SRC Act are unsuccessful. Accordingly, the Tribunal finds that Comcare is not liable to pay compensation to Mr Tipping pursuant to section 14 of the SRC Act. DECISION The Tribunal affirms the decisions under review pursuant to subsection 43(1)(a) of the AAT Act.

Ratio Decidendi

Legal Principle Established

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