WQCL and Comcare (Compensation) - [2022] AATA 2808

WQCL and Comcare (Compensation) [2022] AATA 2808 (25 August 2022)
Division: GENERAL DIVISION
File Number: 2020/3594
Re:WQCL
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:25 August 2022
Place:Sydney

I set aside the decision under review and in its place substitute a decision that the Applicant suffered an injury for which compensation is payable within the meaning of s.14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) in relation to her neck, shoulder, arm and hand pain suffered by her after 4 November 2019.
.........................SGD...............................................
Mr Rob Reitano, Member
CATCHWORDS
WORKER’S COMPENSATION – neck, shoulder, arm and hand pain – where Applicant has a pre-existing condition – whether Applicant has a disease – whether Applicant has an injury – whether there was an ailment suffered by an employee – whether the ailment was contributed to, to a significant degree, by the employee’s employment – whether Applicant is entitled to compensation – decision set aside and substituted
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss. 4, 5A, 14
CASES
Comcare v Power (2015) 238 FCR 187
Comcare v Mooi (1996) 69 FCR 439
Cosgrove-Kaye v Comcare [2019] AATA 1238
Hopkins v Comcare [2016] AATA 742
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Wuth v Comcare [2022] FCAFC 42
REASONS FOR DECISION
Mr Rob Reitano, Member
25 August 2022

On 31 January 2020, the Applicant submitted to Comcare a workers compensation claim for ‘mechanical neck shoulder arm and hand pain’ that she said was caused by her ‘doing concentrated prolonged keying and mousing to complete a number of spreadsheets and reporting formats to short deadlines in addition to incoming work.’
On 30 March 2020, Comcare decided to reject the workers compensation claim which decision was, on 29 May 2020, affirmed by a review officer.
On 15 June 2020, the Applicant made an application to the Tribunal asking the Tribunal to review the decision rejecting the claim in order to set it aside and to substitute in its place a decision that she has suffered an injury for which compensation is payable within the meaning of s.14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (Act).
I have decided to set aside the decision under review and in its place substitute a decision that the Applicant suffered an injury within the meaning of s.14 of the Act in relation to her shoulder, arm and hand pain suffered by her after 4 November 2019. My reasons for that decision follow.
WORK AND MEDICAL HISTORY
In about April 1993 the Applicant commenced employment as a temporary employee in the Australian Public Service (APS). She became a permanent employee in about August the same year. She has been employed in various positions in the APS since then with her most recent role being as a Community Liaison Officer. In that role, she has been required to undertake amongst other duties what is described as written planning and reporting work…

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 WQCL and Comcare (Compensation)

Details

AGLC: WQCL and Comcare (Compensation) [2022] AATA 2808
Case: [2022] AATA 2808
Decision Date: 25 August 2022

CaseChat Overview and Summary

This matter concerned an application for compensation by an employee (the Applicant) against Comcare (the Respondent) for neck, shoulder, arm, and hand pain. The dispute centred on whether the Applicant's employment had contributed significantly to her condition, which involved a pre-existing degenerative neck disease. The decision was made by Mr Rob Reitano, Member.

The legal issues before the court were whether the Applicant suffered from a disease, an injury, or an ailment within the meaning of the relevant legislation, and crucially, whether her employment contributed to such a condition to a significant degree. The court was required to determine if these criteria were met to establish entitlement to compensation.

The Member found that the Applicant's employment had contributed to her neck, shoulder, arm, and hand pain to a significant degree. This finding led to the conclusion that the Applicant had suffered a disease within the meaning of section 4 of the Act, an injury within the meaning of section 5A of the Act, and was therefore entitled to compensation under section 14 of the Act. The court set aside the previous decision and substituted a new decision confirming the Applicant's entitlement to compensation for the pain suffered after 4 November 2019.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 6 May 2020, the Applicant commenced a graduated return to work programme and eventually returned to work full time.SPECIALIST MEDICAL EVIDENCE After the Applicant returned to work, three specialists provided reports expressing opinions concerned with the origins of her symptoms of neck, shoulder, arm and hand pain. The first of these was Associate Professor Thakkar who had seen the Applicant before but the other doctors were Dr Andreas Loefler (Dr Loefler), an orthopaedic surgeon, and Professor Peter Youssef (Professor Youssef), a specialist rheumatologist both of whom the Applicant had not seen before. It is convenient to deal with what they each said in turn rather than to deal with their evidence chronologically. On 13 May 2020, Associate Professor Thakkar wrote that the Applicant has ‘advanced background degenerative neck disease, and this would considerably lower her threshold to both have increasing flares and exacerbations and potentially progression over time’. The report said that ‘I would regard this as an aggravation/exacerbation or continuation of a pre-existing condition, rather than a new injury that has been attributed to the 4 November 2019’. The most significant aspect of Associate Professor Thakkar’s report was that he expressed the firm opinion that ‘The extent and severity of the neck degenerative change on her imaging would not, conceivably, be attributed (sic) the nature of her reported work. However, it is conceivable that if there was a significant change in the nature and duties related to her work contributed to by stress and pressure requirements, that it may have contributed to potential flare up ultimately leading to her reporting a date of injury as of 4 November 2019’. The Associate Professor pointed out that he was relying on self-reporting about the nature of any changes as he had no other material available to him about them. On 11 May 2021, Associate Professor Thakkar concluded in a report that ‘My overall summary is that [the Applicant] does have degenerative neck disease and I have detailed this in previous correspondence (congenital C2/3 fusion, multilevel facet joint arthritis, severe discovertebral change reflecting degeneration to C4/5 where there is canal stenosis that was mild and root impingement, although there were some changes above and below this level). Much of her problems were a flare-up of this with tight neck paraspinal muscles all contributed to the change in her workplace environment and substantial pressures’. On 15 June 2021, Associate Professor Thakkar provided another report and repeated his opinion that ‘…I felt she had a flare up of neck pain that was driven by tight paraspinal neck muscles, degenerative neck disease and a chronic high tension work environment. This has been repeated in multiple reports, and this was consistent with my assessment and the investigations. I would not regard work as causing the extent of her neck degenerative disease, but I would regard work as a potentially exacerbating and aggravating factor for her neck pain … There is no doubt that soft tissue aggravation was part of her neck pain’.

Decision

Reasons for decision

I find that the Applicant’s neck, shoulder, arm and hand pain was contributed to, to a significant degree, by her employment. It follows that the Applicant had a disease within the meaning of s.4 of the Act, an ‘injury’ within the meaning of s.5A of the Act and is entitled to compensation under s.14 of the Act. DECISION I set aside the decision under review and in its place substitute a decision that the Applicant suffered an injury for which compensation is payable within the meaning of s.14 of the Act in relation to her neck, shoulder, arm and hand pain suffered by her after 4 November 2019.

Ratio Decidendi

Legal Principle Established

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