Abraham and Comcare (Compensation)

[2018] AATA 177

Abraham and Comcare (Compensation) [2018] AATA 177 (15 February 2018)

Division:GENERAL DIVISION

File Number(s):      2016/4981

2016/5879

Re:Abe Abraham

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:15 February 2018

Place:Sydney

2016/4981

The decision under review is affirmed.

2016/5879

The decision under review is affirmed.

..................[sgd]..................................................

Senior Member A Poljak

CATCHWORDS

COMPENSATION – workers compensation – section 16 claim – lower back pain – whether applicant made wilful and false representation – medical and claim history not disclosed – disease not taken to be an injury – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 7(7), 14 and 16

CASES

Comcare Australia v Porter (1996) 70 FCR 139

Iannella v French (1968) 119 CLR 84

Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Senior Member A Poljak

15 February 2018

BACKGROUND

1. On 14 October 2003, Mr Abraham, the applicant, submitted a claim for workers compensation with respect to ‘spinal injury’ which he claimed occurred on 11 September 2003. On 9 December 2003, a Comcare delegate accepted liability for ‘lumbosacral (joint) (ligament) strain’ with the date of injury of 11 September 2003 (“the accepted condition”).

   2016/4981

2. The decision under review in this matter is the decision dated 23 June 2016. This decision affirmed a determination dated 20 May 2016, which denied liability under section 16 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the SRC Act”) for a ‘back support chair’ with respect to the applicant’s accepted condition.

   2016/5879

3. The decision under review in this matter is the decision dated 13 October 2016. That decision affirmed a determination dated 31 August 2016, which denied liability under section 16 of the SRC Act for ‘L2/3 foraminal injection and associated hospitalisation costs’ with respect to the accepted condition.

   ISSUES AND CONTENTIONS

4. The two decisions under review in these proceedings concern whether any compensation is payable to the applicant under s 16 of the SRC Act.

5. In light of new evidence obtained in July 2017, produced under summons from the applicant’s previous employer, Telstra Corporation Limited, Comcare submits that the Tribunal should, pursuant to section 7(7) of the SRC Act, find that the applicant has, at some time, for purposes connected with his employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from the accepted condition, or a condition substantially the same as the accepted condition.

6. Accordingly, Comcare contends that in the absence of an injury, no liability under s 16 of the SRC Act can arise and it follows that the decisions under review should be affirmed.

7. In the alternative, Comcare submits that the Tribunal should find that the applicant does not presently suffer from an injury because any musculo-ligamentous strain he suffered on 11 September 2003 resolved soon after and further, in the alternative, the lumbar support chair claimed by the applicant is not a curative apparatus and the applicant suffered a new and unrelated injury in August 2016.

   JURISDICTION

8. In reviewing the s 16 decisions, the issues to be determined are whether the applicant suffers an injury; whether the claimed medical treatment was obtained in relation to the injury; and whether the treatment is reasonable for the applicant to obtain in the circumstances. Comcare’s s 14 decision of 9 December 2003 remains undisturbed.

9. Accordingly, the first question to consider is whether I have jurisdiction to make a finding of fact contrary to the original determination under s 14 (accepting liability in respect of the applicant’s compensation claim) where that determination is not the subject of review.

10. In Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Hannaford), the full Federal Court of Australia held that this Tribunal is empowered to make findings of fact that effectively undercut the necessary findings of fact made by an original decision-maker under s 14, in circumstances where the AAT is only undertaking a review of determinations made pursuant to ss 16 and 19 and/or ss 21 and 27 of the Act, and where the original s 14 determination remains in force. Conti J (Heerey and Dowsett JJ agreeing) said at [59]:

    I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA Act (sic) and in the events which happened:

    (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation;

    (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and

    (iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

    In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.

11. Having regard to the decision in Hannaford, I am satisfied that I can consider all sections of the SRC Act relevant to determining whether the applicant’s condition constitutes an injury for the purposes of the SRC Act, despite such findings now being inconsistent with Comcare’s s 14 decision of 9 December 2003. As such, I have jurisdiction to determine whether the applicant has, at some time, for purposes connected with his employment by the Commonwealth, made a wilful and false representation that he did not suffer, or had not previously suffered, from the accepted condition, or a condition substantially the same as the accepted condition such that, pursuant to s 7(7) of the SRC Act, the accepted condition is not an injury for the purposes of that Act.

    SECTION 7(7) OF THE SRC ACT

12. Section 7(7) of the SRC Act provides:

    A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed Corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

13. A representation is not wilful and false unless it is both objectively untrue and made by the employee without any belief that it is true; see Comcare Australia v Porter (1996) 70 FCR 139 (Porter). In Porter, Jenkinson J noted the following observations of Barwick CJ in Iannella v French (1968) 119 CLR 84 at [149]:

    Barwick CJ observed in Iannella v French (1968) 119 CLR 84 at 94-95:

    "It is thus appropriate to consider the meaning and application of the word 'wilful' in the specification of an offence. The Chief Justice of South Australia, having examined the case law, has repeated the view that the cases show that the word 'wilful' is not a word of fixed meaning. But of this I cannot myself feel absolutely certain. I am inclined to think that in the description of a criminal offence its connotation is fairly constant: but that its denotation varies with the verbal context and the subject matter of the statutory provision. In my opinion, 'wilful' connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful." [Emphasis added]

14. I also note that in Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 at [53]-[54], the Federal Court pointed out that s 7(7), read literally, could operate harshly against a claimant. For example, the Court noted that an employee might, not wishing to disclose an embarrassing medical condition, make a false representation during a group training exercise about some condition that may later be aggravated by the employment. Doubting that the provision was intended to deny compensation in such circumstances, the Court considered that the provision should not be applied liberally in favour of those resisting a claim.

    IS THE APPLICANT’S CONDITION A “DISEASE” OR “INJURY”?

15. In order to determine whether s 7(7) of the SRC Act applies in these proceedings, I need to differentiate whether the applicant’s claim involves an injury or disease. For the following reasons, I am satisfied that the condition is a disease for the purposes of the SRC Act.

16. The applicant’s accepted condition is ‘lumbosacral (joint) (ligament) strain’. The true situation, as revealed only now, is that the applicant suffered the same condition in 2003 which he had earlier suffered in 1986, that is, a ‘musculo-ligamentous strain at L4/L5 and possibly involving S1 level’.

17. In a report dated 30 March 2017, Professor Youssef, consultant rheumatologist, reported that the applicant has degenerative disc disease, specifically lumbar degenerative disc and facet joint disease at multiple levels, most recently symptomatic at L2/3.

18. At hearing, Professor Youssef confirmed that the applicant never reported any prior back problems before 2003. Counsel for Comcare advised Professor Youssef of the applicant’s prior back injury in 1986 and appraised him of the results of a CT scan outlined in the letter of M Spigelman dated 12 November 1987, namely, that “there seems to be evidence of an L4/5 and L5/S1 discal protrusion, particularly in L5/S1 which seems to be causing some nerve root compression on the right”. Professor Youssef opined that the applicant’s back condition has not changed in appearance since that time such that any structural change occurred in 2003. He said that the changes were similar to those seen in the CT scans from 2003 and accordingly it is likely that the muscular skeletal sprain in 2003 was not a new tear or a new lesion.

19. Professor Youssef advised that he could not explain some of the applicant’s symptoms as they were inconsistent with the results of the CT scan. He said that if the applicant had told him about his prior history he would have included that detail in his report of 30 March 2017 because it would have helped to explain the CT findings. Professor Youssef further confirmed that changes in 2003 had been there previously and that the applicant suffered from degenerative disc disease. He said that in 2003 and 1986 the applicant suffered a musculo-ligamentous strain with no objective evidence of disc prolapse or radiculopathy arising from either strain.

20. I prefer the evidence of professor Youssef and place considerable weight on his findings because he was the only medical professional to be appraised of the applicant’s prior medical history and was the only medical professional to give evidence orally at hearing.

21. Having regard to the medical evidence, specifically that of Professor Youssef, I am satisfied that the applicant has the disease of lumbar disc degeneration (with degenerative disc disease) and has suffered some temporary strains to his lumbar region which may be classed as temporary aggravations of the symptoms of that disease.

    THE APPLICANT’S PRIOR RELEVANT HISTORY AND CONDUCT

22. The applicant commenced employment with the Australian Taxation Office on a contract basis on 1 August 2003, performing administrative duties for a period of five weeks when the injury occurred. The applicant completed a Workers Compensation claim form on 14 October 2003, for back pain that he stated was contributed to by “carrying file boxes from the floor to the shelf, where they should be filed”, which he claimed occurred on 11 September 2003.

23. The applicant denied suffering in the past from any similar injury or illness (whether related or not) in his claim for Workers Compensation form dated 14 October 2003. Specifically, the applicant advised in response to question 17(a) and (b) that he was suffering from ‘back pain’, in the ‘lower back’. In response to question 18(a), ‘have you ever had a similar injury or illness before, work-related or otherwise (even if you think it is unrelated to this injury or illness)?’ the applicant responded ‘no’ and did not provide details of the name of a doctor, medical practice or hospital which treated him for any prior condition(s) (question 18(b)). In response to whether or not the applicant had ever claimed for the injury(ies) or illness(es) described in questions 17 and 18 (question 19), the applicant answered ‘no’.

24. On 9 December 2003, a Comcare delegate accepted liability for ‘lumbosacral (joint) (ligament) strain’ with the date of injury of 11 September 2003.

25. Following a recent visit by the applicant to Blacktown Hospital, Comcare issued a summons to produce to Telstra Corporation Limited dated 13 June 2017 (“summons”).

26. On 16 June 2017, the applicant emailed this Tribunal applying to have the summons set aside on the grounds that material was not relevant because “it happened more than 30 years ago, since then to the year 2003 (where the ATO injury happened) my back was in good condition, and I did not suffer any permanent injury or was undergoing any treatments, and because of the critical nature of this matter, the respondent cannot prove it medically or technically”. He claims that due to the amount of time that has elapsed and insignificance of the injury, he would be disadvantaged if the summons was not set aside. He further states:

    “Obviously the respondent tries to represent to the Tribunal irrelevant and obsolete documents, which is not relevant to my present matter, the respondent is legally responsible only from 2003 to now, and not before this period, and I do not have to comply with it, and the summons should not have been issued”.

27. The documents produced under summons detail injuries and prior claims which the applicant has suffered over at least a 7 ½ year period from March 1986 to late 1993/early 1994. In light of the summons material from Telstra Corporation Limited, the applicant’s answers in response to questions 18 and 19 in the Workers Compensation claim form and his claims to medical practitioners that he did not experience any similar symptoms prior to 2003, were plainly incorrect and misleading. Some material regarding the relevant prior history is summarised below:

    (a)In an accident report dated 19 March 1986, it is noted that the plaintiff (the applicant in these proceedings) suffered a back sprain on 26 February 1986;

    (b)On 7 July 1986, Dr J.B.E Stephenson stated that the applicant’s complaints were of lumbar pain; and that x-rays showed minor lumbar spondylosis. It is noted that the applicant had a course of physiotherapy and a CT of the lumbar spine showed mild central posterior intervertebral disc protrusion at the L4/5 level with a little compression on the anterior aspect of the thecal sac;

    (c)On 26 September 1986, the applicant submitted a claim for compensation with Telecom Australia for the back injury sustained on 26 February 1986. The applicant states in the claim form that the same injury happened four years ago;

    (d)In a statutory declaration dated 29 September 1986, the applicant stated the following:

    “I was standing on the top of the ladder to take off the top rely set and loaded it on the middle of the rack suddenly I heard my back and I felt pain in my back, I stopped work until lunch and start again after lunch to the end of the day, I went home and the pain was increasing…”;

    (e)On 29 October 1986, a determination was issued under section 27 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) accepting liability with respect to the applicant’s back injury with the date of injury of 26 February 1986;

    (f)On 18 February 1987, a recommendation was made by Dr Gulyas, a medical redeployment officer, that consideration be given to ceasing Telecom Australia’s compensation liability for the applicant’s back condition;

    (g)On 11 March 1987, the applicant filed a statement of claim in the Supreme Court of New South Wales (number 12045 of 1987) in respect of said injuries, and loss and damage occasioned by the applicant on behalf of the Australian Telecommunications Commission as a result of the injury sustained by the applicant on 26 February 1986;

    (h)On 21 May 1987, Dr Frederick Ehrlich, orthopaedic surgeon, diagnosed the applicant with lumbar disc lesion;

    (i)In response to a request for further and better particulars, the applicant’s solicitors stated the following in a letter dated 3 June 1987:

    “Flexion extension injury to the back, musculo-ligamentous injury to the back, soft tissue injury to the back, damage to the spine at L4, L5, lumbar disc lesion, severe lower back pain, severe back pain on bending and standing for long periods, restriction on extension, rotation and lateral flexion of the back, right postero- lateral protrusion at L5/S1”.

    (j)On 12 November 1987, Dr M Spigelman said that it appears that the applicant has damaged his lower lumbar spine. Dr Spigelman stated that rupturing a disc is not a lifelong crippling condition and that many patients recovered fully from such injuries;

    (k)On 22 January 1988, Dr Seaton stated that a MRI study carried out on the applicant’s lumbar spine on 17 December 1987 showed that he “had a severe disc protrusion with sequestration at the L4-5 level but there was only a mild disc bulging at the L5 S1 level”. Dr Seaton advised that if the pain worried the applicant he would be wise to undergo surgical excision in the form of a L4-5 discectomy;

    (l)In an accident report dated 14 December 1988, the applicant claims to have suffered a strained back in his lower left back on 5 December 1988. In the accident form it is noted, “this accident can be completely prevented if the officer concerned knew he is not allowed to lift anything. Then why did he? Officer not to lift anything is pretty obvious”;

    (m)In a report of Dr John Wright dated 16 January 1989, it is recorded under past “1982 - low back ache as stated above”. Dr Wright notes that the applicant “complains now of worsening and intractable pain in his back and left lower limb, not truly consistent with the x-ray appearances on which an operative procedure has apparently been based. Clinically and physically, he does not have good indications for an operative procedure because there is disparity between his complaints and the x-ray findings (as to side)”. It is also noted in the report that “there were certain inconsistencies with suggested overreaction”;

    (n)On 16 November 1989, the applicant filed in the Supreme Court of New South Wales particulars of his injuries and continuing disabilities which provides, inter alia, as follows:

    Particulars of injuries

    1L4/5 and L5/S1 discal protrusion;

    2Musculo-ligamentous injury to the back;

    3Pain in lumbar spine radiating into both legs;…

    Particulars of continuing disabilities

    1Pain in lumbar spine;

    2Pain from lumbar spine radiating into both legs;…

    (o)In a report dated 25 September 1990, Dr John Power notes that the applicant says “he is never free of pain”. Dr Power further notes “there are features which suggest past organic pathology which is recovering and regardless of what occurs with the organic position, he is likely to continue to complain of non-organic symptoms and non-organic manifestations clinically for the foreseeable future”.

1. Prior to production of the documents under summons, the only medical records before me date back to 2003; after the alleged incident on 11 September 2003. The applicant appears to have ceased attending any of his previous medical practitioners/specialists. It is also plain on the available medical evidence that post the incident in 2003, the applicant has failed to disclose his previous back injury or significant past medical history to a number of medical practitioners and specialists, for example:

   (a)In a report dated 31 January 2005, Dr S Soliman notes that the applicant has no previous back injury and no significant past medical history. Dr Soliman opines that the applicant sustained constant lower back ache with bilateral sciatica due to the lifting of boxes at work on 11 September 2003; and that the applicant’s lower back ache was due to severe musculo-ligamentous sprain/strain of the lumbosacral spine and severe compression upon the thecal sack and the right S1 nerve root, with compression on left L5 nerve root. He again reiterates that “the employee did not suffer from any pre-existing condition to his lower back prior the injury on 11.09.2003”;

   (b)In a report dated 15 March 2005 by Professor Sydney Nade, orthopaedic surgeon, it is recorded that the applicant’s current symptoms (as described by him) included, inter alia, continuous low back pain which was central and sharp, pain worse with sudden movements, pain in both thighs. It is noted, “[The applicant] told me that he did not have any of the above symptoms before 11 September 2003. He told me that he had not been involved in any other accidents”. Professor Nade opined that the applicant most likely had a genetic predisposition to degenerative changes affecting intervertebral discs in the lumbar region of his spine but noted that the applicant had no symptoms prior to 11 September 2003. On balance, Professor Nade opined that the applicant’s current symptoms were directly related to the incident that occurred on 11 September 2003;

   (c)Dr GJ McGroder, consultant occupational health physician, notes in his report dated 2 May 2005, that the applicant denied problems prior to 11 September 2003;

   (d)In a report dated 15 September 2005, Dr Peter D Stevenson, consultant physician, records that the applicant “said he was previously quite active, he would swim, play tennis and run 3 km a day, although on interrogation he admitted ruefully that was about 10 years ago”. In response to any relevant history, Dr Stevenson notes “any previous back pain is denied. This would be statistically unusual in someone in their late 50s, but [the applicant] presents as a reasonable historian”;

   (e)Dr William Wa, medical advisor, records in his report dated 28 October 2003, the applicant denied any significant past medical history;

   (f)In the report of Dr Temer Kahil, consultant orthopaedic surgeon, dated 25 January 2005, it is recorded that the applicant “denies any past history of lower back pain”;

   (g)In a report dated 30 March 2017, Professor Youssef records that there was no previous history of workers compensation or third party claims and noted “he said that prior to 2003, he had not experienced back pain. He had not seen a medical practitioner, physiotherapist or other form of allied health professional for back problems. He said that he was swimming regularly, walking 50 minutes a day, was able to climb onto a roof to do some work and was generally happy with his level of function”.

   CONSIDERATION

2. Comcare contends that the representations made by the applicant in relation to his claim for compensation, were wilfully false.

3. At hearing, the applicant was informed of his right to invoke privilege in regards to self-incrimination. Some of the questions put to him in cross-examination, he did not answer. This does not reflect adversely on him. As stated by counsel for Comcare, the purpose of cross-examination was not to elicit perjury or concessions from the applicant but was solely directed to ensuring compliance with the rule in Browne v Dunn. This was appropriate in the interests of procedural fairness so that the applicant had an opportunity to explain apparent inconsistencies in the evidence.

4. The applicant’s justification for the inconsistencies in the evidence was that he considered his prior back condition resolved because he stopped experiencing pain after a year from 26 February 1986 and/or 3 March 1986, or sometime around late 1993/early 1994 after receipt of a compensation payment and after up to 8 years of continuous debilitating pain.

5. I am not convinced that this is a plausible or logical reason for the applicant’s consistent, prolonged and calculated conduct. The wilful and false representations made by the applicant are plainly apparent on the face of the material before me.

6. Having regard to all the material before me, I find it implausible that the applicant would forget about his relevant past history, particularly so as it relates to a similar injury to that which occurred in 2003. Having regard to the summons material from Telstra Corporation Limited, it is plain that the applicant has had a number of previous aggravations of his back condition, has filed accepted claims for workers compensation, attended upon a number of medical professionals regarding his back condition, undertaken physiotherapy treatment and numerous radiological assessments, and initiated proceedings in the Supreme Court of New South Wales. While the records appear to be incomplete, I am satisfied that the applicant has an extensive medical history relevant to these proceedings.

7. I find it extraordinary that the medical evidence, prior to receipt of the summons material from Telstra Corporation Limited, only covers the period of time after the incident in 2003 to the present. In relation to the current claim, it appears that the applicant only saw medical practitioners and specialists who were unfamiliar with his prior medical history and claims. He has clearly undertaken a very calculated, careful and consistent course of conduct in ensuring that he never mentioned his prior condition or symptoms during any medical assessments since 2003. The degree of deception on behalf of the applicant is remarkable. On balance, I find that the applicant had no belief that the false statements he made were true statements.

8. The consequence of the applicant’s failure to disclose his prior medical history and previous claim for compensation is significant. The misrepresentations caused medical professionals confusion in arriving at their opinions and diagnosis. Professor Youssef confirmed at hearing that the information was medically relevant and assisted in explaining the correlation between CT scan results in 2003 and the applicant’s symptoms. He also advised that the similarities between scans conducted in 2003 and those in 1987 showed no new structural changes had occurred in the spine.

9. For all of the above reasons, I am satisfied that the applicant knew the statements he made to Comcare, denying any past similar injury or illness (whether related or not), and denying any prior claims, were false. Specifically, statements and representations made by the applicant were objectively untrue and made by the applicant without any belief that they were true. Such representations come squarely within the role that s 7(7) of the SRC Act was intended to address.

   DECISION

10. Pursuant to section 7(7) of the SRC Act, the accepted condition is not presently an injury suffered by the applicant for the purposes of the SRC Act. As the applicant does not presently suffer from an injury, he is not entitled to any form of compensation under section 16 of the SRC Act.

11. Both of the decisions under review are affirmed.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.....................[sgd]...............................................

Associate

Dated: 15 February 2018

Date(s) of hearing:	7 & 8 August 2017
Applicant:	In person
Counsel for the Respondent:	S Wright
Solicitors for the Respondent:	Ms S William, Comcare