Aslimoska and Comcare (Compensation)

Case [2020] AATA 91

Aslimoska and Comcare (Compensation) [2020] AATA 91 (30 January 2020)

Division:GENERAL DIVISION

File Number(s):     2018/0760          

Re:Nikolina Aslimoska

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:30 January 2020

Place:Canberra

The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

............................................................

Member W Frost

Catchwords

WORKERS’ COMPENSATION – hip condition – posterior labrum tear – cartilage injury to right hip – osteoarthritis – whether the Applicant suffers an injury as defined in section 5A of the Safety, Rehabilitation and Compensation Act – whether the Applicant suffers a disease as defined in section 5B of the Safety, Rehabilitation and Compensation Act – whether the ailment or aggravation of an ailment was contributed to, to a significant degree, by the Applicant’s employment - whether the Respondent is liable to pay compensation under section 14 of the Safety, Rehabilitation and Compensation Act – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 37, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14

Cases

Australian Postal Corporation v Bessey (2001) FCA 266

Caldipp Pty Limited t/as Slaven Motors v Delov [2002] FCAFC 352

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Collins v Repatriation Commission (2009) FCAFC 90

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Commonwealth v Beattie (1981) 53 FLR 191

Kropp and Comcare [2019] AATA 4078

Martin v Australian Postal Corporation (1999) FCA 655

Mellor v Australian Postal Corporation (2009) FCA 504

Military Rehabilitation and Compensation Commission v Katterns (2017) FCA 641

Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW)

Re Anderson and Australian Postal Corporation (2016) AATA 228

Re Comcare and Reardon (2015) AATA 1166

Roncevich v Repatriation Commission (2005) 222 CLR 115

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

REASONS FOR DECISION

Member W Frost

30 January 2020

INTRODUCTION

  1. In September 2014, the Applicant, Ms Nikolina Aslimoska, slipped and fell at her workplace, the Department of Health. Three days later, Ms Aslimoska completed an Injury and Incident Report stating that she fell on her ‘right arm (elbow and shoulder)’;[1] Ms Aslimoska did not report falling on, or injuring, her right hip.

    [1] Exhibit 1, T3, page 8.

  2. In evidence to the Administrative Appeals Tribunal, Ms Aslimoska said she began experiencing groin and hip pain in early 2015; it was not reported to a medical professional until 30 May 2016. Almost one year after reporting hip pain, and two and a half years after the workplace incident, Ms Aslimoska’s general practitioner asked whether she had ever fallen on her hip. Only at this time was Ms Aslimoska’s fall connected with her hip condition, which had been diagnosed as osteoarthritis.  

  3. In June 2017, three months after this connection was made, Ms Aslimoska submitted a workers’ compensation claim to Comcare for posterior labrum tears and cartilage injury to right hip as a result of her fall in 2014. Comcare denied liability for Ms Aslimoska’s claim and she applied for…

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AGLC
Aslimoska and Comcare (Compensation) [2020] AATA 91
Case
[2020] AATA 91
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Aslimoska against a decision by Comcare regarding her claim for workers' compensation. The dispute centred on whether Ms Aslimoska had suffered an injury or disease to her right hip, as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), and whether her employment had contributed to this condition to a significant degree. The Administrative Appeals Tribunal (the Tribunal) was required to determine these issues.

The legal questions before the Tribunal were whether Ms Aslimoska suffered an "injury" under section 5A of the SRC Act, whether she suffered from a "disease" under section 5B of the SRC Act, and consequently, whether Comcare was liable to pay compensation under section 14 of the SRC Act for her right hip condition. The Tribunal's determination hinged on findings of fact regarding the incident of 12 September 2014, when Ms Aslimoska slipped and fell at work, and the subsequent onset and nature of her hip pain.

The Tribunal found that Ms Aslimoska was not a credible witness due to inconsistencies in her accounts of the fall and the onset of her hip pain over the five years since the incident. The Tribunal placed significant weight on the contemporaneous Injury and Incident Report completed shortly after the fall, which did not mention any impact to her right hip or any associated pain, despite Ms Aslimoska acknowledging the importance of accurately recording such details for potential future claims. Based on this lack of contemporaneous reporting and the significant delay between the fall and the reported symptoms, the Tribunal was not satisfied that the fall caused her right hip condition or aggravated any pre-existing ailment. Furthermore, the Tribunal found that Ms Aslimoska's employment did not contribute to her condition to a significant degree.

Consequently, the Tribunal was not satisfied that Ms Aslimoska suffered an injury to her right hip as a result of the fall at work. Accordingly, Comcare was not liable to pay compensation to Ms Aslimoska under section 14 of the SRC Act. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues for the Tribunal to decide are:(a)whether Ms Aslimoska suffered an injury pursuant to section 5A of the SRC Act;(b)whether Ms Aslimoska suffers from a disease pursuant to section 5B of the SRC Act; and(c)whether Comcare is liable to pay compensation to Ms Aslimoska for her right hip condition pursuant to section 14 of the SRC Act.BACKGROUND Ms Aslimoska was born in 1976.[5] [5] Document numbered ‘T4’, page 10, in the bundle of documents lodged with the Tribunal on 13 March 2018 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1). In November 2008, Ms Aslimoska commenced employment with the Department of Health.[6][6] Exhibit 1, T6.1, page 23. On 12 September 2014, Ms Aslimoska slipped and fell at her workplace.[7] [7] Exhibit 1, T3, pages 7-9. On 15 September 2014, Ms Aslimoska submitted an Injury and Incident Report for the Department of Health.[8] In the section of the Report titled ‘Description of injury, illness or incident’, Ms Aslimoska said that:[9]At approximately 10.30 am I went to use the disabled toilet on the ground floor as I had a file with me and though [sic] it would be easier to use this toilet as there is a chair in there that I could leave the file on. I slipped on the wet floor and landed on my right arm (elbow and shoulder). I returned to my area and Nikki Hills (First Aid Officer) provided ice which I applied to the area for 30 minutes. [8] Exhibit 1, T3, pages 7-9.[9] ibid., page 8. On 30 May 2016, twenty months after this incident, Ms Aslimoska attended Dr Fletcher, General Practitioner, about right hip pain. Dr Fletcher’s Consultation Record noted as follows:[10] History: chronic right hip painworse on movementshas worsened since she put on a little weightExamination: right hip exam normalnormal rom,no tendernessDiagnosis: hip painTreatment/Plan: Canberra Imaging: US [ultrasound] right hip – ongoing right hip pain, worse on movement[10] Document numbered ‘ST2’, page 2, in the supplementary bundle of documents lodged with the Tribunal on 24 April 2019 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 2). On 1 June 2016, Ms Aslimoska had an x-ray of her right hip. The report from the Queanbeyan District Hospital noted there was ‘right acetabular subchondral cyst formation, suggestive of OA [osteoarthritis]. No other significant bone on joint abnormality seen. If there is ongoing concern, further evaluation with MRI is suggested’.[11][11] Exhibit 2, ST3, page 3. On 22 June 2016, Ms Aslimoska consulted with Dr Fletcher, who recorded that her right hip pain ‘comes and goes’[12] and referred to her having physiotherapy and losing weight. Dr Fletcher also recorded that Ms Aslimoska ‘wants MRI’ and the ‘Treatment/Plan’ is listed as ‘MRI right hip – chronic right hip pain’. [12] Exhibit 2, ST4, page 4. On 14 March 2017, Ms Aslimoska had an MRI of her right hip and the radiologist commented as follows:[13]There are degenerative changes involving the anterior aspect of the right hip joint with moderate grade articular cartilage thinning and subchondral oedema and cyst formation in the acetabular aspect. These are more than expected in the patient of this age group. Please correlate clinically for the precipitating factors.Within the limitations of non-arthrographic study, two focal acetabular labral tears are identified in the posterosuperior and anterior acetabular labrum with no evidence of paralabral cyst formation.A specialist consultation is recommended. [13] Exhibit 1, T4.1, pages 12-13.

Evidence

Evidence Before The Court

For completeness, an ‘ailment’ is defined in section 4 of the SRC Act to mean:any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).EVIDENCEMs Aslimoska In a Witness Statement dated 23 August 2018, Ms Aslimoska said that, prior to the fall in September 2014, she had not had ‘any noteworthy or noticeable hip pain’; she often rode a bicycle and played ‘casual soccer’, but could not ‘recall any significant incidents of a fall on my right hip other than the fall on 12 September 2014’.[26] In relation to that incident, Ms Aslimoska stated as follows:[26] Exhibit A1, Witness Statement of Nikolina Aslimoska dated 23 August 2018.On 12 September 2014, I went to use the bathroom on the ground floor of the Therapeutic Goods Administration building. I had picked up a few files to take with me as I was on the way to see a colleague. I was going to use the disabled bathroom because I knew there was a chair in the bathroom which I could use to rest the files on whilst I used the bathroom.I recall that the door was open already, and so I walked in straight away without having to wait. Then, as I took a few steps into the bathroom walking towards the chair on which I would rest my files, I slipped on wet tiles and fell. There was a shower in the bathroom, and so I believe that the water must have come from the shower after somebody had previously used it. There was a reasonably large amount of water on the floor when I looked at it closely after having fallen, but there was not a big puddle as such, but rather, separate pools of water.When I fell, my feet slipped out from underneath me and I fell from about hip height on to my right hand side of my body which impacted with the tools [sic]. I avoided my head hitting the tiles by instinctively keeping it up as I was falling. My right shoulder and right elbow collided with the tiles, but my right hip also hit the tiles as I recall there was a loud slap from my right hip as my dress came up and my skin hit the tiles and made a slapping sound as it impacted with the tiles.At the time of the fall, I may not have noticed that there was pain in the hip. I do not recall limping on that day, but I was shaking which got progressively worse throughout the day which led to me eventually reporting the incident to Nikki Hills, the first aid officer in my team. I believe I was likely in shock. I was icing my arm and shoulder for 30 minutes because it was tender but I do not recall significant immediate pain there at first. I then decided I had to report it to Nikki Hills, the first aid officer, later in the day because I was shaking more and more. I filled out the incident report, and I recall that there was redness or bruising right shoulder which is why that was mentioned in the incident report. As the injuries to the right shoulder was the only injuries that were noticeable, and because I did not notice immediate pain in my hip, the hip impact and any symptomology was not noted in the incident report.Reporting of right hip injury and diagnosis of problemsInitially, right hip pain was not immediately noticed. However, from about early 2015 onwards, I started to notice pain in my right hip which caused significant discomfort and difficulty with movement, causing me to even develop a limp on occasions when it would flare up. Although it caused me pain, I did not report it to my doctor at this time.

Decision

Reasons for decision

The best evidence available to Ms Aslimoska regarding the potential contribution of her employment was the report of Dr Reiter who posited that it was ‘possibly 20%’, but also said this ‘is very difficult to determine’.[73] In her evidence before the Tribunal, Dr Reiter said, in relation to the question of whether the fall contributed to a significant degree to Ms Aslimoska’s osteoarthritis in the hip: ‘No. I would not call it a significant degree’. In response to the same question, Dr Burrow said: ‘The contribution of about one-fifth that would be the absolute most…my overall opinion would be probably no contribution or even considerably less than one-fifth based on the history I was given’. Given the history provided by Ms Aslimoska to Dr Reiter, relied upon in the latter’s expert report, which contradicted Ms Aslimoska’s subsequent evidence to the Tribunal regarding the timing of the onset of her symptoms, the uncertainty about Dr Reiter’s percentage of attribution from employment is increased and accordingly the evidence of Dr Burrow is preferred and accepted by the Tribunal. For the avoidance of doubt, and in light of the Tribunal’s earlier finding that Ms Aslimoska did not suffer a disease in accordance with section 5B of the SRC Act, the Tribunal is accordingly satisfied that her employment made no contribution. [73] Exhibit 2, ST9, page 13.DECISION For the above reasons, the Tribunal is not satisfied that Ms Aslimoska suffered an injury to her right hip when she fell at work in 2014. Therefore, Comcare is not liable to pay compensation to Ms Aslimoska under section 14 of the SRC Act. The decision under review is affirmed pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

Ratio Decidendi

Legal Principle Established

Comcare submitted that the medical evidence of Dr Burrow should be preferred; the history is inconsistent with a hip injury in the fall, whether by way of aggravation of the underlying arthritis or in relation to the labral tear. Comcare argued that Dr Reiter’s opinion is less reliable because she obtained a history from Ms Aslimoska that contradicts the contemporaneous evidence regarding where she landed after her fall. Regardless, Comcare contended, the Tribunal cannot accept Dr Reiter’s suggestion that there was a labral tear because she suggested that the injury was a possibility not a probability. In relation to Dr Krause’s evidence, Comcare said his opinion is reliable to the extent that he concludes that the long timeframe between the fall and the symptoms is inconsistent with any injury in the fall. CONSIDERATIONMs Aslimoska’s credibility Ms Aslimoska’s claim for compensation for an injury to her right hip under section 14 of the SRC Act centres on her account of both the fall she suffered at the Department of Health on 12 September 2014 and the timing of the onset of symptoms following that incident. The outcome of Ms Aslimoska’s claim is therefore dependent upon findings of fact by the Tribunal, including its view of her credibility and the reliability of her evidence regarding these issues. After careful consideration of the evidence before it, the Tribunal is not satisfied that Ms Aslimoska was a witness of credit. Essentially, this is because Ms Aslimoska over the five years since her fall provided multiple varying accounts of both the incident and the onset of pain in her right hip. Ms Aslimoska’s evidence before the Tribunal was another variation of the inconsistent histories she has provided to her employer, Comcare and multiple medical professionals. Accordingly, the Tribunal is not satisfied about the reliability of Ms Aslimoska’s evidence given the multiple different histories she has provided about the fall itself and the onset of her symptomatology. Although Ms Aslimoska did not appear to be deliberately evasive in her evidence before the Tribunal, and allowing for the effluxion of time, the Tribunal does not accept her recollection of events as described to the Tribunal due to these various inconsistent accounts, which made her a fundamentally unreliable witness. In this regard, the Tribunal favours the contemporaneous documentation of the fall, the Injury and Incident Report, where Ms Aslimoska did not mention falling on her right hip or it being in pain. The latter only occurred, on the evidence of Ms Aslimoska to the Tribunal, in early 2015. Based on the medical evidence, given the delay in symptomatology from the time of the fall, the Tribunal is not satisfied that it is the reason for her right hip condition or any aggravation of that condition. Ms Aslimoska completed and submitted an Injury and Incident Report on 15 September 2015, three days after her fall.[57] Under cross-examination, Ms Aslimoska confirmed that she understood the importance of this document. Ms Aslimoska also acknowledged that the incident needed to be accurately and comprehensively recorded so that it was documented for any future workers’ compensation claim and for the future safety of other employees. The Injury and Incident Report Ms Aslimoska completed said she landed on her ‘right arm (elbow and shoulder)’; it did not refer to Ms Aslimoska falling on either her right hip or the right side of her body. The Report also did not refer to any pain in Ms Aslimoska’s right hip or groin as a result of the fall. Under cross-examination, Ms Aslimoska could not recall what elements of the Report she had completed and which had been pre-populated by her employer, however she did recall completing the section describing the incident and injury. In relation to that section of the Report, Ms Aslimoska said it was a ‘rushed explanation’, she included ‘a small bit of information’ and she did not expand on ‘every detail’, but could not provide any other explanation for omitting her claimed fall onto her right hip. However, Ms Aslimoska agreed there was no time pressure and she had adequate space in that section to describe the events. Ms Aslimoska also said it was ‘at the time all I could produce’. In this regard, the Tribunal finds that Ms Aslimoska did not state in the Incident and Injury Report that she landed on her right hip because it did not occur. The Tribunal is satisfied that if Ms Aslimoska had fallen or landed on her right hip, she would have said so in the Injury and Incident Report. [57] Exhibit 1, T3, pages 7-9.