Atkinson and Comcare (Compensation) - [2016] AATA 804

Atkinson and Comcare (Compensation) [2016] AATA 804 (13 October 2016)

Division

GENERAL DIVISION

File number

2015/3393

Glenn Atkinson

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr James Popple, Senior Member

Date 13 October 2016

Place Canberra
Comcare’s decision on 15 May 2015 is affirmed.
...............[sgd].........................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — liability previously accepted for upper limb injuries — determination ceasing liability to pay compensation for incapacity and medical treatment expenses — whether Applicant continued to suffer from the effects of his accepted injuries on and after date of determination — surveillance material shows Applicant undertaking some activities that are inconsistent with him suffering from his accepted injuries — medical evidence supports finding that Applicant did not suffer from the effects of his accepted injuries on or after date of determination — decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19

CASES
Comcare v Power (2015) 238 FCR 187
Commonwealth v Borg, unreported, Federal Court of Australia, Full Court, 15 November 1991
Greaves and Comcare [2015] AATA 177
McDonald v Director-General of Social Security (1984) 1 FCR 354
Power and Comcare [2015] AATA 471
Stanton and Comcare [2015] AATA 297
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION
Dr James Popple, Senior Member
13 October 2016
Summary

In 2011, Comcare accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for injuries to the applicant’s arms. In 2015, Comcare decided that the applicant no longer suffered from the effects of those injuries and, therefore, had no entitlement to compensation under s 16 for medical treatment, or under s 19 for incapacity.
Comcare had commissioned video surveillance of the applicant, which was conducted in October and November 2014. Some of the things that the applicant is seen doing on that video are inconsistent with him then suffering from the effects of his accepted injuries. It follows that the applicant no longer suffers from the effects of those injuries. He has no entitlement to compensation under s 16 or s 19 of the SRC Act.
Background
The facts set out at [4]–[18] below are agreed between the parties.
Mr Glenn Atkinson started working for the Department of Finance (the Department) on 20 November 2007. He was a records officer performing data entry and administration duties.
On 15 February 2011, Mr Atkinson made a claim for compensation for a repetitive strain injury affecting his right forearm. He said that the injury happened or was first noticed on 8 October 2010. He first sought medical treatment on 1 February 2011.
On 19 March 2011, Comcare accepted liability under s 14 of the SRC Act for “synovitis and tenosynovitis (right) (forearm and hand)”, with a date of injury of 2 February 2011. On 14 September 2011, Comcare accepted liability for a secondary injury: “synovitis and tenosynovitis (left)”. Together, these are the accepted injuries.
On 16 September 2011, Dr Peter Wilkins,…

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 Atkinson and Comcare (Compensation)

Details

AGLC: Atkinson and Comcare (Compensation) [2016] AATA 804
Case: [2016] AATA 804
Decision Date: 13 October 2016

CaseChat Overview and Summary

This matter concerned an application by Mr Glenn Atkinson for review of a decision by Comcare to cease liability for compensation payments. Comcare had previously accepted liability for Mr Atkinson's right and left forearm and hand injuries, diagnosed as synovitis and tenosynovitis, with an initial date of injury in February 2011. The decision under review, made on 15 May 2015, affirmed Comcare's determination that, from 16 February 2015, Mr Atkinson no longer suffered from the effects of his accepted injuries and was therefore not entitled to compensation for incapacity or medical treatment expenses. The review was heard by Dr James Popple, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Comcare remained liable to pay Mr Atkinson compensation under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for medical treatment and incapacity for work, respectively, from 16 February 2015. The resolution of these issues depended entirely on whether Mr Atkinson continued to suffer from the effects of his accepted injuries on and after that date. The Tribunal noted that, as a practical matter, Comcare bore the onus of persuading it that compensation payments should no longer be made.

The Tribunal considered evidence including video surveillance of Mr Atkinson undertaken in October and November 2014, which showed him engaging in activities inconsistent with suffering from his accepted injuries. This surveillance material, combined with medical evidence, led the Tribunal to conclude that Mr Atkinson did not suffer from the effects of his accepted injuries on or after 16 February 2015. Comcare argued that Mr Atkinson's accepted injuries were not significantly contributed to by his employment, that he no longer suffered from any upper limb condition, and that if he did, it was unrelated to his accepted injuries. The Tribunal found that the evidence supported Comcare's position that Mr Atkinson no longer suffered from the effects of his accepted injuries.

Consequently, the Tribunal affirmed Comcare's decision of 15 May 2015. Mr Atkinson's application for review was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Comcare had commissioned video surveillance of the applicant, which was conducted in October and November 2014. Some of the things that the applicant is seen doing on that video are inconsistent with him then suffering from the effects of his accepted injuries. It follows that the applicant no longer suffers from the effects of those injuries. He has no entitlement to compensation under s 16 or s 19 of the SRC Act.Background The facts set out at [4]–[18] below are agreed between the parties. Mr Glenn Atkinson started working for the Department of Finance (the Department) on 20 November 2007. He was a records officer performing data entry and administration duties. On 15 February 2011, Mr Atkinson made a claim for compensation for a repetitive strain injury affecting his right forearm. He said that the injury happened or was first noticed on 8 October 2010. He first sought medical treatment on 1 February 2011. On 19 March 2011, Comcare accepted liability under s 14 of the SRC Act for “synovitis and tenosynovitis (right) (forearm and hand)”, with a date of injury of 2 February 2011. On 14 September 2011, Comcare accepted liability for a secondary injury: “synovitis and tenosynovitis (left)”. Together, these are the accepted injuries. On 16 September 2011, Dr Peter Wilkins, a consultant occupational physician, reported that Mr Atkinson suffered from “a non-traumatic soft-tissue disorder”. On 5 January 2014, Dr Andrew Serafim, Mr Atkinson’s general practitioner (GP), reported that Mr Atkinson suffered “a connective tissue distortion involving the medial epicondyle region of his elbows secondary to overuse”. On 18 February 2014, Dr Charles Howse, a sports physician, reported that Mr Atkinson had “signs of likely chronic bilateral compartment pressure syndrome in the volar compartments of the forearm and also possible chronic flexor tendinosis”. On 20 February 2014, Dr Howse reported that testing had confirmed that Mr Atkinson had bilateral flexor compartment syndrome. Dr Howse recommended “referral to an orthopaedic surgeon for assessment for possible fasciotomies”. On 10 September 2014, Dr Chris Roberts, an orthopaedic surgeon, reported that Mr Atkinson “has, I believe, compartment pressure elevation which is compartment syndrome and there may be other pathology namely medial epicondylitis, ulnar nerve entrapment and overuse syndrome”. His view was that Mr Atkinson “suffers from compartment syndrome and if he does not have surgery he will continue to experience these symptoms”. He said that he had “no reason to believe that Mr Atkinson is exaggerating or altering his examination voluntarily”. He explained that, in his opinion, “it was a combination of him squeezing the files” that he picked up and held when entering data at his work “over a period of time and using the mouse that had [led] to the development of his compartment syndrome”. He concluded that “there must have been some congenital predisposition with a relatively tight compartment to start with and the activity at work has aggravated or accelerated the problem such that he now has continued to experience the symptoms indefinitely despite ceasing this type of employment”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 7 July 2015, Mr Atkinson applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 15 May 2015 to affirm its determination that, from 16 February 2015, Mr Atkinson did not suffer from the effects of the accepted injuries, and had no entitlement to compensation under s 16 or s 19 of the SRC Act.Issues The issues in this review are whether, from 16 February 2015:·Comcare is liable to pay Mr Atkinson compensation under s 16 of the SRC Act in respect of the cost of medical treatment obtained in relation to his accepted injuries; and·Comcare is liable to pay Mr Atkinson compensation under s 19 for incapacity for work resulting from his accepted injuries.Both issues depend on whether Mr Atkinson continued to suffer from the effects of his accepted injuries on and after that date.“Onus” In 1984, in McDonald v Director-General of Social Security, the Full Court of the Federal Court explained that there is no evidential onus of proof in proceedings before the Tribunal unless the relevant legislation provides for it.[1] Mr Atkinson says that Comcare bears “a practical onus” of demonstrating that the effects of the compensable injury have ceased. He refers to the case of Stanton and Comcare, in which I used that expression,[2] citing the Federal Court’s decision in Commonwealth v Borg[3] and the Tribunal’s decision in Greaves and Comcare.[4][1] (1984) 1 FCR 354 at 358 per Woodward J. See also at 365–366 per Northrop J; at 368–369 per Jenkinson J.[2] [2015] AATA 297 at [20].[3] Unreported, Federal Court of Australia, Sweeney, Jenkinson and Gray JJ, 15 November 1991. The court’s reasons appear, in their entirety, in an editor’s note to Telstra Corporation Ltd v Arden (1994) 20 AAR 285 at 299–310: see at 307 per Jenkinson J, with whom Sweeney J agreed.[4] [2015] AATA 177 at [26] per Bean DP. In 2015, in Comcare v Power, the Federal Court said that “[t]he observation about Comcare bearing ‘a practical onus’ is somewhat enigmatic.”[5] However, after considering several authorities,[6] the Court concluded that it “is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made”.[7][5] (2015) 238 FCR 187 at 197 [57] per Katzmann J. Her Honour was referring to my use of that expression in Power and Comcare [2015] AATA 471 at [71].[6] (2015) 238 FCR 187 at 197–200 [58]–[69] per Katzmann J.[7] (2015) 238 FCR 187 at 200 [70] per Katzmann J. Accordingly, in this review, it is for Comcare to persuade me of the circumstances which justify a finding that compensation payments should no longer be made to Mr Atkinson.The competing arguments Comcare argues that:·Mr Atkinson’s accepted injuries were not contributed to, to a significant degree, by his employment by the Department;·even if they were, he does not now suffer from any condition affecting his upper limbs; and·even if he does, that condition is unrelated to his accepted injuries.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File number	2015/3393
Glenn Atkinson
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	13 October 2016
Place	Canberra