Zaveczky and Comcare (Compensation) - [2020] AATA 4960

Zaveczky and Comcare (Compensation) [2020] AATA 4960 (9 December 2020)
Division:GENERAL DIVISION
File Number(s): 2018/1166, 2018/6132, 2020/5994, 2020/5997, 2020/5998, 2020/5999
Re:Nicole Zaveczky
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:9 December 2020
Place:Sydney

The decisions under review are affirmed.
................................[sgd]........................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – four claims in relation to conditions affecting the Applicant’s right and left shoulder, and right elbow – bilateral rotator cuff disorder – whether the Applicant suffered an injury – whether the Applicant’s employment contributed to, to a significant degree, or contributed to the aggravation of the Applicant’s condition – decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 19, 29, 39, 62
CASES
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Lees and Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May [2016] 257 CLR 468
Portors and Comcare (Compensation) [2017] AATA 2166
Portors v Comcare [2018] FCA 914
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
Dr I Alexander, Senior Member
9 December 2020
BACKGROUND

On 21 February 2007, Ms Zaveczky commenced her employment with the Department of Human Services[1] (DHS) as an APS4 Customer Service Officer.
[1] Currently renamed as Services Australia.
In 2013, ultrasound imaging revealed pathological change in her right[2] and left[3] shoulder.
[2] Report 4 August 2013 – Subscapularis Supraspinatus Infraspinatus Tendons - normal. No gross structural abnormality is identified apart from very small foci of irregular thickening of the bursa. This could reflect mild bursitis.
[3] Report 6 September 2013 - Findings are consistent with supraspinatus tendinosis and subacromial/subdeltoid bursitis.
On 4 December 2013, Ms Zaveczky lodged a claim[4] for compensation in respect of ‘injury’ to both upper limbs. The claimed date of injury was 7 March 2013.
[4] Claim number 1202473/01.
On 20 February 2014, Dr Hall, occupational physician, submitted a report to Comcare in which he stated that ‘On the balance of probabilities the conditions currently suffered are related to her employment with DHS’.
On 17 March 2014, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare accepted liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’.
On 27 June 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment for ‘Ultrasound guided injections steroid into bilateral subacromial bursa, on 16 and 30 June 2014’.
On 8 August 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment up to and including 2 September 2014 for ‘Relevant reviews with your treating practitioner; Related prescribed pharmaceuticals; Review with your treating Rheumatologist’.
On 10 September 2014, pursuant to section 16 of the SRC Act, Comcare accepted compensation payment up to and including 2 October 2014 for…

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 Zaveczky and Comcare (Compensation)

Details

AGLC: Zaveczky and Comcare (Compensation) [2020] AATA 4960
Case: [2020] AATA 4960
Decision Date: 9 December 2020

CaseChat Overview and Summary

This matter concerned four claims made by Ms Zaveczky against Comcare regarding conditions affecting her right and left shoulders and right elbow, specifically a bilateral rotator cuff disorder. The central dispute revolved around whether Ms Zaveczky had suffered an "injury" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), and whether her employment had contributed to, or aggravated, her conditions to a significant degree. The decisions under review, which had denied her entitlement to compensation, were affirmed by the Tribunal.

The legal issues before the Tribunal were whether Ms Zaveczky had suffered an "injury" for the purposes of subsection 5A(1) or section 5B of the SRC Act. This required the Tribunal to consider the nature of her conditions, the timing of their onset and aggravation, and the causal link between her employment duties and these conditions. The Tribunal also had to determine if her pre-existing fibromyalgia diagnosis impacted the assessment of her claims.

The Tribunal's reasoning focused on the definition of "injury" under the SRC Act. It noted Ms Zaveczky's evidence of experiencing pain and swelling in her right arm and shoulder in 2009, coinciding with a significant change in her workplace computer system to a mouse-based operation. While she was diagnosed with repetitive strain injury at the time and her symptoms dissipated during maternity leave, the Tribunal considered whether this constituted a compensable injury. The Tribunal also examined her subsequent experiences of pain and swelling in both shoulders upon her return to work and the medical diagnoses of bilateral shoulder bursitis and tendinitis. Ultimately, the Tribunal found that Ms Zaveczky had not established that she suffered an "injury" as defined by the Act, nor that her employment contributed significantly to the aggravation of her conditions.

Consequently, the Tribunal affirmed the reviewable decisions, which had revoked previous determinations accepting liability for various shoulder and elbow conditions. This resulted in Ms Zaveczky having no present entitlement to compensation under the SRC Act, and a determination that an overpayment of $73,928.85 had occurred, which was to be refunded to Comcare.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Therefore, the definitive issue in this matter is whether Ms Zaveczky ever suffered an ‘injury’ for the purposes of subsection 5A(1) or section 5B of the SRC Act.MS ZAVECZKY’S EVIDENCE In an undated statement, which Ms Zaveczky attached to her new claim lodged on 17 August 2017, she stated, inter alia, as follows:In 2009 I began to experience pain and swelling to my right arm and shoulder. Suitable duties at work and conservative medical treatment of this injury followed. I went on maternity leave in March 2010, returning in February 2011. On my return, my aforementioned injury to my right arm/shoulder flared up. To minimise the extent of this injury, I changed my work practice to enable the mousing and the majority of the keying be done with my left arm/handIn March 2011, I began to experience pain and swelling to my left arm and shoulder also. I continued with my self-funded medical treatment and participated in alternative duties in conjunction with my normal duties whilst at work. In October 2011, I commenced maternity leave with my second child, returning to work in October 2012. On returning to work, the pain and swelling in my shoulders flared up again, with my right hand side being worse than my left. In January 2013, I once again sought medical attention as the pain and swelling affecting both of my shoulders and right forearm continued. I continued to seek medical treatment from doctors, specialists, massage therapists and physiotherapists and was diagnosed with bilateral shoulder bursitis and tendinitis. [emphasis added] In her evidence in chief at the hearing, Ms Zaveczky told the Tribunal that she was diagnosed with fibromyalgia when she was around 16 or 17 years old and described her symptoms as ‘general aches and pains, mostly in my lower limbs, and a little bit of fatigue’ which were managed with paracetamol and ibuprofen. Ms Zaveczky confirmed that in 2009, while working for DHS, ‘there was a significant change in the computer system that we were using. It went from primarily keyboard and shortcut key-based to primarily mouse-based’ and that she began to experience ‘fatigue and a little pain in her right arm and shoulder’. When Ms Zaveczky consulted her GP[10] he advised that her symptoms were due to ‘repetitive strain injury’ and that she seek ‘alternative duties and allow the injury to settle and attend physiotherapy’. [10] 19 March 2009 - Dr Joannou. Ms Zaveczky explained that she was allowed to perform alternative duties, her workstation was ergonomically assessed and modified, and she was provided with Dragon Naturally Speaking technology. Ms Zaveczky confirmed that in March 2010, she went on maternity leave and said that her symptoms ‘dissipated’. When she returned to work in February 2011, she was restricted to two days per week for about four weeks and then gradually up to three days per week. She said that after about three to four weeks she noticed some ‘discomfort’ in her right ‘mid-shoulder’. She sought physiotherapy assistance and was allowed to perform some alternative duties at work.

Decision

Reasons for decision

In a reviewable decision dated 22 October 2018, an authorised delegate affirmed the decision of 28 September 2018 which determined that as at 15 March 2016, Ms Zaveczky ‘has no present entitlement to compensation under the SRC Act’ in respect of sections 16, 19, 29 and 39 of the SRC Act (Application 2018/6132). Following a reconsideration of its own motion in respect of a determination made on 28 October 2015 which accepted liability for ‘bursitis (left)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘bursitis (left)’ (Application 2020/5994). Following a reconsideration of its own motion in respect of a determination made on 17 March 2014 which accepted liability for ‘subacromial/subdeltoid bursitis (right)’, ‘supraspinatus (muscle) (tendon) strain (left)’ and ‘aggravation of lateral epicondylitis (right)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘subacromial/subdeltoid bursitis (right)’ and ‘supraspinatus (muscle) (tendon) strain (left)’. However, liability with respect to ‘aggravation of lateral epicondylitis (right)’ should remain unaffected (Application 2020/5997). Following a reconsideration of its own motion in respect of a determination made on 31 October 2014 which accepted liability for ‘right arthroscopic subacromial decompression’ and ‘rotator cuff debridement (and possible repair)’, in a reviewable decision dated 24 September 2020, an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘right arthroscopic subacromial decompression’ and ‘rotator cuff debridement (and possible repair)’ (Application 2020/5998). Following a reconsideration of its own motion in respect of a determination made on 13 July 2015 which accepted liability for ‘manipulation under anaesthetic and release of contracture of frozen shoulder (right)’, in a reviewable decision dated 24 September 2020 an authorised delegate decided to revoke the determination in accordance with paragraph 62(1)(a) of the SRC Act and instead deny liability for ‘manipulation under anaesthetic and release of contracture of frozen shoulder (right)’ (Application 2020/5999). In a letter dated 2 October 2020, AAIL informed Ms Zaveczky that on 24 September 2020, following a review of her claim (1202473/1), all ‘conditions/determinations’ had been revoked and, therefore, ‘there is no liability on your claim’. As a result, ‘an overpayment of $73,928.85 has occurred’ which is to be refunded to Comcare. In these proceedings Ms Zaveczky, who was represented by counsel, seeks review of the six reviewable decisions. In view of the temporary changes with regard to the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, the parties attended the hearing by videoconference. RELEVANT STATUTORY PROVISIONS

Ratio Decidendi

Legal Principle Established

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