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

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

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 Abraham and Comcare (Compensation)

Details

AGLC: Abraham and Comcare (Compensation) [2018] AATA 177
Case: [2018] AATA 177
Decision Date: 15 February 2018

CaseChat Overview and Summary

This matter concerned an application for workers' compensation under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) by an applicant seeking compensation for lower back pain. The respondent was Comcare. The dispute centred on whether the applicant had made wilful and false representations regarding his medical history and prior injuries when lodging his claim. The decision was made by A Poljak SM.

The court was required to determine whether the applicant had made wilful and false representations to Comcare concerning his pre-existing lower back condition and medical history. Specifically, the court had to consider whether the applicant's failure to disclose relevant medical and claim history meant that his condition should not be taken to be an injury for the purposes of the SRC Act, and consequently, whether he was entitled to compensation under section 16.

The Senior Member found that the applicant had repeatedly failed to disclose his previous back injury and significant past medical history to various medical practitioners and specialists after the alleged incident on 11 September 2003. The evidence presented, including reports from Dr S Soliman, Professor Sydney Nade, Dr GJ McGroder, Dr Peter D Stevenson, Dr William Wa, Dr Temer Kahil, and Professor Youssef, indicated that the applicant had consistently denied any prior back injury or significant past medical issues. The Senior Member was satisfied that the applicant knew these statements were false and were made without any belief in their truth, thereby falling within the scope of section 7(7) of the SRC Act.

Consequently, the Senior Member determined that the accepted condition was not an injury suffered by the applicant for the purposes of the SRC Act. As the applicant was not found to be suffering from an injury, he was not entitled to any compensation under section 16. The Senior Member affirmed both decisions under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. Both of the decisions under review are affirmed.

Ratio Decidendi

Legal Principle Established

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