Webber and Comcare - [2010] AATA 348

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3192

GENERAL ADMINISTRATIVE DIVISION )

Re KERRY WEBBER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal Professor RM Creyke, Presiding Member
Date11 May 2010
PlaceCanberra

Decision The decision under review is set aside and in substitution the Tribunal finds Comcare is liable to compensate Ms Webber for an injury, namely a disease, for the period from 1 October 2006 to 14 August 2007.
...........................[sgd]...............

Professor RM Creyke, Presiding Member
CATCHWORDS
COMPENSATION – whether Applicant suffered a ‘disease’ that was materially contributed to by the Applicant’s employment – Applicant has chronic fatigue syndrome (CFS) – whether symptoms a result of Applicant’s underlying condition or word processing during employment – CFS symptoms in remission prior to relevant period – Applicant’s employment required heavier word processing than previous employment – Applicant’s symptoms increased during employment and decreased following leave – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 14
Re Albanese and Comcare [2004] AATA 768
Comcare and Sahu-Khan (2007) 156 FCR 536
Re Halliday and Comcare (1994) 19 AAR 431
Re Vo and Comcare [2005] AATA 773
Weigand and Comcare [2002] 72 ALD 795
11 May 2010  REASONS FOR DECISION

Professor RM Creyke, Presiding Member

1.      Ms Webber was employed by the Department of Human Services (the Department) from 2005 until she resigned in June 2008. She had been in the Australian Public Service since 1982. On 22 February 2007 she made a claim for 'chronic overuse WP [word processing] problem’ affecting her 'neck, shoulders, arms, hands'. It was contended that a correct description of the injury is 'recurrent (non-specific) pain in her arms and neck'. Ms Webber also suffered from chronic fatigue syndrome.
2.      Comcare rejected the application for ‘synovitis & tenosynovitis (bilateral) and aggravation of myalgia and myositis, unspecified (fibromyalgia)’ on 30 July 2007, a decision upheld on review on 9 May 2008. On 17 July 2008, Ms Webber appealed to the Tribunal. The appeal was heard by the Tribunal on 15 to 17 March 2010.
Legislation
3.      The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). The particular provisions are section 14 of the Act, which provides for the circumstances in which Comcare is liable to pay compensation for an injury suffered by an employee where that injury results in incapacity for work or impairment. 'Injury' is defined to include a disease which in turn includes an 'ailment' and an 'aggravation of ... an ailment'. 'Ailment' and an 'aggravation' are defined in section 4(1) of the Act as follows:
4(1) aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

Issues
4. The issues are:
· Whether Ms Webber has suffered an 'injury' as defined in the Act?
·…

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 Webber and Comcare

Details

AGLC: Webber and Comcare [2010] AATA 348
Case: [2010] AATA 348
Decision Date: 11 May 2010

CaseChat Overview and Summary

In the case of Webber and Comcare, Ms Webber sought compensation for a disease she claimed was materially contributed to by her employment with the Commonwealth. Ms Webber argued that her chronic fatigue syndrome (CFS) was exacerbated by her employment, which required extensive word processing. The dispute was heard and determined by the Administrative Appeals Tribunal (AAT).

The primary legal issue was whether the disease Ms Webber suffered from, chronic fatigue syndrome, was materially contributed to by her employment. The AAT had to determine whether the symptoms experienced by Ms Webber were a result of her underlying condition or were exacerbated by her employment. Additionally, the Tribunal needed to assess whether the disease met the statutory definition of an injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

The AAT found that Ms Webber’s CFS symptoms were in remission before she took up her employment. However, her symptoms increased during her employment and decreased following a period of leave. The Tribunal noted that Ms Webber’s employment required more extensive word processing than her previous employment, which was less demanding in this regard. Given these findings, the Tribunal concluded that Comcare was liable to compensate Ms Webber for her injury from 1 October 2006 to 14 August 2007. The decision under review was set aside, and the Tribunal found Comcare liable for the specified period.

The Tribunal's decision was based on the evidence presented and the statutory requirements for compensation under the Act. The outcome highlights the importance of considering the specific demands of an employee's role and the impact on their health when assessing claims for compensation.

Orders

Orders of the court

The decision under review is set aside and in substitution the Tribunal finds Comcare is liable to compensate Ms Webber for an injury, namely a disease, for the period from 1 October 2006 to 14 August 2007.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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