Claimed conditions were not contributed to the requisite degree by employment
Date: May 10, 2023
Tipping and Comcare (Compensation)  AATA 457
- The Tribunal was asked to decide whether Mr Tipping suffered an “injury” as defined by the SRC Act.
- The Tribunal found in favour of Comcare.
The applicant was employed by the Department of Defence (Defence) between 11 March 2011 and 31 August 2018.
On 16 January 2019, the applicant submitted a claim for workers’ compensation in relation to injuries to his back, neck and right knee sustained as a result of “undertaking government business at a computer work station” on 1 June 2018. Comcare denied liability to pay compensation under section 14 of the Safety, Rehabilitation and Compensation 1988 Act (Cth) (the SRC Act). The decision was affirmed on reconsideration and the applicant sought further review at the Administrative Appeals Tribunal (the 2019 Proceeding).
On 8 October 2021, the applicant submitted a second claim for workers’ compensation in relation to several “consequential and secondary injuries which were not claimed previously” but were said to have been first noticed on 15 March 2012. The applicant claimed the following parts of the body were affected: rotator cuffs, shoulders, posterior chain muscles, upper and lower back, pelvis, neck, right hip, piriformis muscles, scapulars, leg muscles, right knee, right calf, right foot, abdominal muscle, and elbow. Comcare denied liability to pay compensation under section 14 of the SRC Act. The decision was affirmed on reconsideration and the applicant sought further review at the Tribunal (the 2022 Proceeding).
An injury is defined under section 5A of the SRC Act as an injury arising out of, or in the course of, an employee’s employment.
A disease is defined under section 5B of the SRC Act as an ailment, or an aggravation of an ailment, which has been contributed to, to a significant degree, by the employee’s employment.
Under section 4 of the SRC Act, an ailment means any physical or mental ailment, disorder, defect or morbid condition.
The applicant contended that he suffered a multitude of injuries over a long period of time as a result of his employment with Defence. He attributed these to the nature and conditions of his work, various incidents during his employment, poor workstation ergonomics and delayed ergonomic assessments, and injuries suffered as a result of treatment obtained for his claimed injuries, together with associated or secondary injuries.
Comcare contended that the applicant did not suffer from an “ailment” or “aggravation” affecting his back, neck, or right knee, as claimed, for the purposes of the SRC Act. It further submitted that none of the claimed conditions, including those claimed in relation to the 2022 Proceeding, were contributed to, to a significant degree, by the applicant’s employment with Defence and therefore none constituted a “disease” under section 5B of the SRC Act.
The Tribunal found that there was no incident or sudden physiological change or disturbance of the normal physiological state giving rise to “an injury (other than a disease)” or an “aggravation” of such a physical injury suffered by the applicant arising out of, or in the course of, his employment pursuant to section 5A of the SRC Act. Therefore, the Tribunal focused on whether the applicant met the requirements of a “disease” under section 5B of the SRC Act.
The Tribunal found that none of the applicant’s claimed conditions were contributed to, to a significant degree, by his employment with Defence. In reaching its conclusion the Tribunal had regard to section 5B(2) of the SRC Act and the medical evidence, in particular the pre-existing injuries to the applicant’s back, neck, and right knee, the predominantly sedentary nature of his work, the absence of objective corroboration of the incidents alleged to have occurred during his employment, the applicant’s sporting activities and treatment programs, and the post-employment incidents and conditions affecting the applicant.
The Tribunal noted that while the applicant may have experienced some pain and other symptoms from time to time at work, and subsequently after his employment ended, this was not sufficient in itself to establish that his claimed conditions were contributed to the requisite degree under the SRC Act by his employment.
Accordingly, the Tribunal affirmed the reviewable decisions.
In reaching its decision, the Tribunal has yet again confirmed that it is not enough for a worker to have merely experienced pain during the course of their duties for liability to be established.
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