01.07.2022 Compo win against National Australia Bank

Angela Sdrinis Legal recently successfully ran a case against National Australia Bank with the worker winning liability before the Tribunal: Mercado and National Australia Bank Limited (Compensation) [2022] AATA 2136 (1 July 2022).  Acceptance of liability under Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). 

Ms Mercado is a longstanding employee of National Australia Bank (NAB) who worked for some 20 years within the fraud investigation area of the bank. Ms Mercado’s employment duties consisted of office-based tasks, which predominantly included the heavy use of a keyboard and mouse. Ms Mercado sustained an injury to her right wrist and forearm diagnosed as right extensor carpi ulnaris tenosynovitis. NAB made decision denying liability for Ms Mercado’s claimed injury. Angela Sdrinis Legal represented Ms Mercado at the Administrative Appeals Tribunal challenging NAB’s decision to deny liability.

The Tribunal ultimately found in Ms Mercado’s favour, ruling that she suffered incapacity and impairment as a result of right extensor carpi ulnaris tenosynovitis which arose out of or in the course of her employment with NAB.

The decision is significant because of the common difficulties claimants often face when making claims relating to overuse injuries, which workers attribute to repetitive work but which employers, in the absence of a frank injury, often seek to deny. The nature of overuse injuries creates a level of complexity that needs to be contended with, that is in stark contrast to when a frank/traumatic injury occurs. Unlike a frank injury where these is a clear traumatic episode followed by pain and injury, generally in the case of overuse injuries there is no acute, or traumatic event, that directly causes the pain or injury of the worker. Because of this, there can be inherent difficulties for an injured worker to establish a causal connection between the diagnosed injury and employment.

Such arguments disputing the client’s injury with her employment were raised by NAB in their submissions to deny liability. It was established in the facts of the matter, that Ms Mercado first experienced or noticed symptoms of pain in her right wrist and forearm whilst at home, when washing her face. NAB argued that when Ms Mercado had this onset of pain, there was no connection between the pain or injury and her employment with NAB, as she was neither at her workplace, or performing any activity relating to her employment with NAB. They submitted that there was no mechanism of injury, or traumatic event that could connect the injury to Ms Mercado’s employment with NAB, and that her employment duties with NAB could not have caused injury to her right wrist and forearm. NAB raised various possible non-work-related factors as the alleged cause of Ms Mercado’s claimed injury.

Orthopaedic surgeon and upper limb specialist, Mr Moaveni, provided oral testimony to the Tribunal that Ms Mercado’s repetitive duties as a fraud investigator with NAB significantly contributed to her right wrist and forearm injury.

Senior Member P.Q. Wood accepted the evidence of Ms Mercado, and preferred the expert evidence provided to the Tribunal by Mr Moaveni. Consistent with this evidence, Senior Member P.Q. Wood found that Ms Mercado suffered incapacity and impairment as a result of her employment with NAB.

This decision is of particular interest to claimants who believe they have sustained overuse injuries caused by repetitive duties which are connected with their employment.

 

By Jonathan De Biase

Solicitor at Angela Sdrinis Legal

Law Institute Victoria Accredited Personal Injury Specialists

product   

South Melbourne Office

Level 1, 239 Park Street South Melbourne 3205

Hobart Office

Unit 5, 286 Macquarie Street Hobart South 7004

©. All rights reserved.