What's New in Commonwealth Compensation

DECISIONS IN WEEK ENDING 22 OCTOBER 2010

• Liability
• Incapacity
• Permanent Impairment
• Medicial expenses

Confidential and Comcare [2010] AATA 798 (18 October 2010) Sydney

In July 2008, the Applicant made a claim for compensation for tendonitis of the left wrist and bursitis of the left elbow which arose out of prolonged, repetitive typing and computer based work. The Applicant further contended in the matter before the Tribunal that she had suffered tenosynovitis and synovitis in her left wrist which also arose out of her employment.

The issues for the Tribunal to consider were:

• Did the Applicant suffer from a disease as defined in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”)?
• If so, was the Applicant’s regional pain syndrome contributed to by her employment to a significant degree?

The Applicant was diagnosed with regional pain syndrome by two doctors. The Tribunal stated that the definitions of “disease” and “ailment” in the 1988 Act were “broad and somewhat circular”. The Tribunal considered whether a syndrome could be considered a “disease” in accordance with the 1988 Act. A rheumatologist stated that a psychological condition or ailment may lie at the root of the Applicant’s physical symptoms. The Tribunal stated that, if the doctor was correct, the psychological condition is a disease or at least an ailment of disorder. The Tribunal accepted that the Applicant’s diagnosis of regional pain syndrome fell within the definition of a “disease”.

With respect to the second issue, the Tribunal stated that the test of significant contribution meant that employment activity and psychological factors could co-exist as significant contributors to the Applicant’s disease. The Tribunal held that it could not be satisfied that the employment activity contributed to a significant degree to the Applicant’s disease. The Tribunal stated that in coming to this conclusion they took into account the Applicant’s low level of keyboard use, the absence of any symptoms on the Applicant’s right side and the failure of her symptoms to resolve when she ceased work.

The Tribunal held that the Applicant’s employment did not contribute to her disease and the Respondent was not liable.

The Tribunal affirmed the decision under review.

Incapacity

Brooks and Australian Postal Corporation [2010] AATA 812 (22 October 2010) Brisbane

In December 2008, the Respondent accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“1988 Act”) for an injury suffered by the Applicant of a “greater trochanteric bursitis left hip” in May 2008. On 13 November 2009, the Respondent determined that that it no longer had a liability to pay compensation to the Applicant under the 1988 Act. That was affirmed in a reviewable decision made in December 2009.

The issue for the Tribunal was whether the Respondent was liable to pay compensation to the Applicant for an injury which has resulted in and continued to result in an incapacity for work or impairment. The Tribunal had to consider whether the original condition suffered by the Applicant was an aggravation of an underlying constitutional condition and whether the incapacity referable to the aggravation continued from 13 November 2009. As the reviewable decision was made on the basis that liability was for a work related aggravation of a constitutional condition, the Tribunal had jurisdiction to revisit the original condition suffered by the Applicant.

The Respondent stated that the Applicant’s greater trochanteric bursitis should have been accepted as a degenerative condition, which was an aggravation of a pre-existing constitutional condition which would have been experienced regardless of her employment. The Respondent contended that the symptoms relating to that aggravation were of a temporary nature which would have been resolved within three to six months of the incident of May 2008.

The Applicant denied the Applicant’s contention and stated that the symptoms relating to her greater trochanteric bursitis had not subsided and remained “directly referable to the injury she sustained in her employment”.

The Tribunal heard from a number of difference doctors who all gave different descriptions of the condition suffered by the Applicant. The Tribunal favoured the orthopaedic surgeon’s description of the condition suffered by the Applicant. The orthopaedic surgeon stated that the Applicant’s continuing symptoms were derived from “permanent aggravation of a degenerative condition.” The Tribunal particularly mentioned that the permanent nature of the aggravation was supported by the doctor. The Tribunal was satisfied that the Applicant’s incapacity from the aggravation of her greater trochanteric bursitis left hip had not ceased by 13 November 2009 and that the Respondent’s liability to pay the Applicant incapacity benefits continued after that date under section 19 of the 1988 Act.

The Tribunal set aside the decision under review and substituted a decision that the Respondent continued to be liable to pay compensation to the Applicant in respect of the incapacity for aggravation of greater trochanteric bursitis left hip under the 1988 Act.

Permanent impairment

Confidential and Comcare [2010] AATA 798 (18 October 2010) Sydney

The Applicant also made a claim for permanent impairment compensation in relation to her regional pain syndrome disease. In light of the Tribunal’s reasoning outlined above under “Liability”, it followed that the Respondent was not liable in respect of the Applicant’s claim for permanent impairment.

The Tribunal affirmed the decision under review.

The facts of this application are detailed above under “Incapacity”. For the reasons detailed above, the Tribunal was satisfied that the Applicant’s incapacity from the aggravation of her greater trochanteric bursitis left hip had not ceased by 13 November 2009 and that the Respondent’s liability to compensate the Applicant for her medical expenses continued after that date under section 16 of the 1988 Act.