Wincott-Whyte and Comcare (Compensation) - [2018] AATA 1631

Wincott-Whyte and Comcare (Compensation) [2018] AATA 1631 (7 June 2018)
Division:GENERAL DIVISION
File Numbers: 2017/1986
2017/3862
2017/4823

Re:Carol Wincott-Whyte
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:7 June 2018
Place:Perth

The decisions under review dated:
(a)8 June 2017 (Application 2017/3862);
(b)28 July 2017 (Application 2017/4823); and
(c)7 February 2017 (Application 2017/1986)

are affirmed.
....[sgd]....................................................................
Member L M Gallagher
CATCHWORDS
COMPENSATION – Commonwealth employee – aggravation of neck sprain and aggravation of sprain of shoulder & upper arm (bilateral) – whether liable under section 16 and section 19 – whether suffers from ailment – section 14 determinations remain in force - decisions under review affirmed
COMPENSATION – Commonwealth employee – bilateral carpal tunnel syndrome – whether bilateral carpal tunnel syndrome contributed to, to a significant degree, by employment - decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 5A, 5A(1), 5B, 5B(1)(a), 7(4), 14, 14(1) 16, 19, 37
CASES
Comcare and Reardon (2015) 148 ALD 356; [2015] FCA 1166
Comcare v Mooi (1996) 137 ALR 690
Re Cross and Comcare [2018] AATA 52
Re Proudfoot and Comcare (2008) 107 ALD 701
Re Ross Catanzariti and Comcare [2004] AATA 1006
Re Vo and Comcare [2005] AATA 773
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Member L M Gallagher
7 June 2018
BACKGROUND

The present matter is comprised of three applications before this Tribunal, arising from two claimed physical conditions; one of which liability has previously been accepted by Comcare.
General
Ms Wincott-Whyte commenced employment with the Department of Human Services (“the Department”) on 21 May 1987 (refer to, for example, R1, T7, page 19). During her employment with the Department, Ms Wincott-Whyte has worked in data entry and reception roles and in more recent years as a mail officer.
In 2010, there were a number of issues regarding the relationship between Ms Wincott-Whyte and the Department addressed by Ms Wincott-Whyte, her then supervisor and her then manager. These issues related to matters such as staff meeting attendance, the use of flexi-time and allegations by Ms Wincott-Whyte of inappropriate discussions being had about her by Departmental employees in her absence.
Initial claim - Aggravation of neck, shoulders and upper arm condition
On or around 25 August 2010, Ms Wincott-Whyte suffered an injury to her shoulders and neck, described by her as “swelling over shoulders, upper trap area with neck spasm” (R2, T15, page 71), which Ms Wincott-Whyte claimed was caused by repetitive work, an increase in workload, the repetitive action of slicing mail open and sitting in the same position in a cramped space (R2, T15, page 73).
Following the injury Ms Wincott-Whyte claimed to have suffered on or around August 2010, Ms Wincott-Whyte returned to work on a graduated return to work plan (“GRTWP”), undertaking modified work duties during reduced working hours. The GRTWP was overseen by Dr Debbie Roberts, General Practitioner and by her rehabilitation provider.
Correspondence between…

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 Wincott-Whyte and Comcare (Compensation)

Details

AGLC: Wincott-Whyte and Comcare (Compensation) [2018] AATA 1631
Case: [2018] AATA 1631
Decision Date: 7 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered three applications made by Ms Wincott-Whyte concerning claims for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The applications related to two distinct conditions: an aggravation of her neck, shoulder, and upper arm condition, and bilateral carpal tunnel syndrome. Comcare had denied liability for these conditions during specific periods.

The Tribunal was required to determine whether Ms Wincott-Whyte suffered from an ailment that was contributed to, to a significant degree, by her employment during the periods in question. Specifically, for the neck, shoulder, and upper arm condition, the Tribunal had to assess if she suffered from such an ailment between 23 January 2017 and 24 March 2017, and if she continued to suffer from it from 1 June 2017 onwards. For the bilateral carpal tunnel syndrome, the Tribunal needed to determine if Comcare was liable under section 14 of the SRC Act.

The Tribunal's reasoning focused on whether the claimed conditions constituted an "ailment" as defined by the SRC Act, and whether employment contributed to them significantly. Medical evidence, including reports from occupational therapists and physicians, was considered. For the neck, shoulder, and upper arm condition, the Tribunal noted that Ms Wincott-Whyte's accepted condition was an aggravation sustained on 25 August 2010. The core issue was whether, during the review periods, she suffered from a compensable ailment that was significantly contributed to by her employment. Regarding bilateral carpal tunnel syndrome, the Tribunal reviewed the denial of liability under section 14 of the SRC Act.

The Tribunal affirmed the decisions under review. This meant that Comcare's previous determinations denying liability for the aggravation of Ms Wincott-Whyte's neck, shoulder, and upper arm condition, and for her bilateral carpal tunnel syndrome, were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The matter was heard in Perth on 6 and 7 February 2018. Ms Wincott-Whyte appeared in person and was self-represented. Comcare was represented by Counsel, Ms Jessica Henderson. Ms Henderson was instructed by Ms Carmen Basilicata from Sparke Helmore Lawyers.Evidence before the Tribunal The Tribunal received the following evidence:·Witness statement of Ms Wincott-Whyte filed on 3 November 2017, with attachments (“A1”);·Ms Wincott-Whyte’s Statement of Facts, Issues and Contentions (Application 2017/1986), filed on 3 November 2017, with attachments (“A2”);·Ms Wincott-Whyte’s Statement of Facts, Issues and Contentions (Application 2017/4823), filed on 3 November 2017 (“A3”);·Ms Wincott-Whyte’s Statement of Facts, Issues and Contentions (Application 2017/3862), filed on 3 November 2017, with attachments (“A4”);·Ms Wincott-Whyte’s submissions in reply to Comcare’s Statement of Facts, Issues and Contentions, filed on 12 January 2018 (“A5”);·Ms Wincott-Whyte’s documents in support of A5, filed on 12 January 2018 (“A5(a)”);·Ms Wincott-Whyte’s further documents in support of A5, filed on 12 January 2018 (“A5(b)”);·Ms Wincott-Whyte’s timeline of events, with attachments, filed on 3 November 2017 (“A6”);·medical records from Dr Debbie Roberts, General Practitioner and from Ellenbrook Medical Centre, filed by Ms Wincott-Whyte on 3 November 2017 in support of A6 and in support of Ms Wincott-Whyte’s various statements (“A7”);·Initial Assessment Report by Ms Taryn Busby, Occupational Therapist/Operations Manager (PeopleSense), dated 16 August 2012 and filed on 3 November 2017 (“A8”);·a 462 page set of T-Documents (T1 – T28) in Application 2017/1986 (“R1”);·a 1131 page set of T-Documents (T1 – T210, 2 volumes) in Application 2017/3862 (“R2”);·a 141 page set of T-Documents (T1 – T33) in Application 2017/4823 (“R3”); and·Comcare’s Statement of Facts, Issues and Contentions dated and filed on 4 December 2017 (Applications 2017/1986, 2017/3862, 2017/4823) (“R4”).Specialist medical evidence before the Tribunal At hearing, oral evidence was given by five medical witnesses. The medical witnesses’ reports were provided prior to the hearing and are contained wholly within the T-Documents and within the attachments to Ms Wincott-Whyte’s various written submissions, as follows:·Ms Kara Cepo, Occupational Therapist, HandWorks Occupational Therapy who provided the following reports:oReport dated 10 November 2016 (A2, page 13 of attachments);oReport dated 6 December 2016 (A2, page 14 of attachments);oReport dated 27 September 2017 (A2, page 15 of attachments); andoReport dated 18 September 2017 (A2, page 16 of attachments).·Dr Debbie Roberts, General Practitioner, who provided the following referrals, reports and consultation notes:oReferral dated 7 September 2016 (R1, T5, page 12);oReport dated 15 December 2010 (R2, T12, page 63); oReport dated 22 June 2011 (R2, T17, page 86); andoConsultation notes (A7 and R1, T8, pages 21 to 29).·Dr Mark Floyd, Consultant Occupational Physician, who provided the following report:oReport dated 25 November 2016 (R1, T14, pages 405 to 419 and R3, T19, pages 76 to 90).·Dr Joel Silbert, Consultant Occupational Physician, who provided the following reports:oReport dated 23 October 2012 (R3, T8, pages 30 to 40);oReport dated 4 April 2016 (R3, T14, pages 54 to 67); andoSupplementary report dated 28 April 2016 (R3, T15, pages 68 to 70).·Dr Eugen Mattes, Consultant Occupational Physician and Epidemiologist, who provided the following reports:oReport dated 16 March 2017 (R2, T185, pages 670 to 682 and R3, T25, pages 98 to 110); andoSupplementary report dated 29 May 2017 (R2, T196, pages 712 to 715 and R3, T27, pages 113 to 116).

Decision

Reasons for decision

On 7 February 2017, a Comcare delegate affirmed the determination dated 6 December 2016 denying liability under section 14 of the SRC Act for Ms Wincott-Whyte’s bilateral CTS (“reviewable decision no.3”) (R1, T27, page 460).Applications before this TribunalApplication 2017/3862 – denial of liability under section 19 of the SRC Act for aggravation of neck, shoulders and upper arm condition from 23 January 2017 to 24 March 2017 On 29 June 2017 (received by the Tribunal on 30 June 2017), Ms Wincott-Whyte applied to the General Division of the Administrative Appeals Tribunal (“Tribunal”) for review of reviewable decision no. 1 (R2, T1, pages 1 and 2). In her application, Ms Wincott-Whyte states that she considers reviewable decision no. 1 to be wrong on the basis that (R2, T1, page 2):The increase in workload, repetitive nature of tasks, doc preparation, the introduction of the new task of writing up of boxes contributed to a [sic] exacerbation of my condition. Being aggravation of neck sprain and aggravation of sprain of shoulder and upper arm/ bilateral dated 25.08.10. A new task of writing of boxes involved overhead reaching carrying down of boxes weighing 3 to 4kg. Going through batches and arranging in numeric order and writing up box and placing back onto shelves. I feel this task contributed to by bursitis. I had restricted movement and pain. I let OHS know on 05.12.17 and a foot stool was introduced. Workload also increased bags from 1 x 10kg, 3 x 16kg. The repetitive nature of doc preparation increasz [sic] the symptoms [sic] my neck, shoulders, arms and wrist become sore during this period. I needed time off to help improve symptom [sic].Application 2017/4823 - no present or future entitlement to compensation under sections 16 and 19 of the SRC Act in relation to aggravation of neck, shoulders and upper arm condition On 7 August 2017, Ms Wincott-Whyte applied to the Tribunal for review of reviewable decision no. 2 (R3, T1, pages 1 and 2). In her application, Ms Wincott-Whyte states that she considers reviewable decision no. 2 to be wrong as follows (R3, T1, page 2):I feel the decision is wrong and different compared to all other treating professionals. eg [sic] Surgeon Dr Lawson-Smith, physio Julian Bowen and GP Dr Debbie Roberts. Dr Matte’s [sic] focused on psychosocial factors and no focus on the compensable physical injury. Dr Mattes never mentioned the new tasks of reaching above head while writing up boxes. The sudden increase in the tub run bags weighing 16kg x 3 and the repetitive nature of document preparation. These tasks contributed to increase in symptoms and bursitis, neck shoulder and wrist pain.Application 2017/1986 – denial of liability under section 14 of the SRC Act for bilateral carpal tunnel syndrome On 6 April 2017, Ms Wincott-Whyte applied to the Tribunal for review of reviewable decision no. 3 (R1, T1, pages 1 and 2). In her application, Ms Wincott-Whyte states that she considers reviewable decision no. 3 to be wrong as follows (R1, T1, page 2):I feel the decision is wrong and Dr Floyd [sic] report is different compared to all other treating professionals, [sic] Surgeon and OT. My job is repetitive introduction of new task Document [sic] preparation using wrist to remove staples stick tape[s] and at time[s] heavy workload caused numbness and pain in wrist. When away from work symptoms settle and disappear. There are many other staff at my workplace with carpal tunnel.RELEVANT LEGISLATION

Ratio Decidendi

Legal Principle Established

When asked by Ms Henderson about the physical examination performed on Ms Wincott-Whyte, Dr Mattes referred to the examination detailed in his supplementary report (R1, T25, page 105), which included provocative testing and that the numerous tests performed gave normal results in both shoulders and in both wrists. Dr Mattes also noted there was no evidence of painful arc or impingement.CONSIDERATION The matters before the Tribunal involve three applications, namely:(a)Application 2017/3862 - denial of liability under section 19 of the SRC Act for aggravation of neck, shoulders and upper arm condition from 23 January 2017 to 24 March 2017.(b)Application 2017/4823 - no present or future entitlement to compensation under sections 16 and 19 of the SRC Act in relation to aggravation of neck, shoulders and upper arm condition.(c)Application 2017/1986 - denial of liability under section 14 of the SRC Act for bilateral carpal tunnel syndrome. The three applications before the Tribunal relate to two claimed physical conditions, which are:(a)aggravation of neck, shoulders and upper arm condition; and(b)bilateral carpal tunnel syndrome. For ease of reference to the available evidence, the consideration of the issues that follows is categorised by condition, rather than by application number, and the conclusions drawn in relation to each condition specifically address the issues for each application set out in paragraphs 29 to 34 above.Aggravation of neck, shoulders and upper arm condition Ms Wincott-Whyte’s accepted condition in relation to Application 2017/3862 and Application 2017/4823 is her condition characterised by Comcare as aggravation of neck, shoulders and upper arm condition, sustained on 25 August 2010, for which Comcare accepted liability under section 14 of the SRC Act on 8 July 2011 (R2, T18 and refer to paragraph 8 above). The first matter for the Tribunal’s consideration is not whether Ms Wincott-Whyte continues to suffer from a condition that strictly meets the description of “aggravation of neck, shoulders and upper arm condition.” Rather, the first matter that falls for consideration is whether, in the periods:(a)from 23 January 2017 to 24 March 2017 (Application 2017/3862); and(b)from 1 June 2017 to the present (Application 2017/4823) (refer to paragraph 19 above), respectively,Ms Wincott-Whyte suffered from (Application 2017/3862) and continues to suffer from (Application 2017/4823) an ailment that, during those periods, was contributed to (Application 2017/3862) and continues to be contributed to (Application 2017/4823), to a significant degree, by Ms Wincott-Whyte’s employment with the Department. If so, then that ailment will meet the definition of a disease in section 5B of the SRC Act and in turn an injury under section 5A of the SRC Act (as required by section 14 of the SRC Act). Only if and when it is established that there remains a compensable injury under section 14 of the SRC Act will sections 16 and 19 of the SRC Act fall for consideration, to the extent they are in issue at the relevant times.Whether Ms Wincott-Whyte suffered from, at the relevant time and/or continues to suffer, from an ailment, and if so, the appropriate diagnosis of that ailment and the date of injury