Bacic and Comcare (Compensation) - [2018] AATA 2384

Bacic and Comcare (Compensation) [2018] AATA 2384 (13 July 2018)
Division:GENERAL DIVISION
File Number(s): 2015/2597
Re:Helena Bacic
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms A F Cunningham, Senior Member
Date:13 July 2018
Place:Hobart

The Tribunal sets aside the reviewable decision dated 18 March 2015 and substitutes it with the decision that:
(i)the applicant is entitled to compensation payments for incapacity for the period 2 April 2008 until 29 February 2012;
(ii)the matter is remitted to the respondent to determine the amount of weekly compensation payable to the applicant pursuant to s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
(iii)any application for costs be made by the applicant by 5:00pm on Monday 16 July 2018 and any submissions in reply from the respondent by 1:00pm on Wednesday 18 July 2018.

.......................[sgd]........................
Ms A F Cunningham, Senior Member
Catchwords
COMPENSATION – accepted injury – incapacity payments – ability to earn – voluntary redundancy – no offer of suitable employment – decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 19
Cases
Bacic and Comcare [2008] AATA 465
Fleming and Comcare [2011] AATA 936
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1; 144 ALR 510
Kavas and Comcare [2011] AATA 935
Secondary Materials
Macquarie Dictionary, 6^th edition
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
13 July 2018

The applicant, Helena Bacic, has an accepted claim for the ‘tear of cartilage or meniscus of knee (R) and injury to posterior tibial nerve (R)’ (the accepted knee condition) with a date of injury of 4 May 1999. The respondent has paid compensation payments for incapacity, medical expenses and a lump sum payment for 20% whole person impairment in respect of the accepted knee condition.
This application concerns the review of a decision dated 18 March 2015 (the reviewable decision). That decision affirmed a determination dated 26 November 2014 in which the respondent denied liability to pay incapacity payments for the period 7 June 2004 to 29 February 2012.
On 20 March 2017 the Tribunal determined that it had no jurisdiction to review the reviewable decision in so far as it concerned the applicant’s entitlement to incapacity payments for the period 7 June 2004 to 1 April 2008. Therefore the relevant period for the purposes of this decision is 2 April 2008 to 29 February 2012.
BACKGROUND
The applicant has made the following applications for review to the Administrative Appeals Tribunal:
·a claim for permanent impairment (2003/18) (subsequently withdrawn by the applicant);
·a claim for liability, incapacity payments and medical expenses relating to a right thumb and shoulder injury (2004/132) (subsequently withdrawn by the applicant) and permanent impairment in relation to the accepted knee condition; and
·a claim for incapacity payments relating to the accepted knee condition from 7 June 2004 (2005/105)
On 31 March 2008 the solicitors for the applicant and the respondent filed signed consent terms…

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 Bacic and Comcare (Compensation)

Details

AGLC: Bacic and Comcare (Compensation) [2018] AATA 2384
Case: [2018] AATA 2384
Decision Date: 13 July 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms. Bacic, against a decision by Comcare concerning her entitlement to incapacity payments under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The dispute centred on the period between 2 April 2008 and 29 February 2012, during which the applicant claimed she was incapacitated for work due to an accepted knee condition. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant was indeed incapacitated for work as a result of her knee condition during this period, and if so, whether she had an ability to earn in suitable employment and was therefore entitled to incapacity payments.

The Tribunal considered the definition of "incapacity for work" under section 4(9) of the SRC Act, which includes an incapacity to engage in any work or to engage in work at the same level as immediately before the injury. The Tribunal referenced the case of *Fleming and Comcare* to interpret "work at the same level" as encompassing not only salary or grade but also the nature, complexity, and duration of tasks. The Tribunal noted evidence from Mr. Mills indicating the applicant was incapacitated for her usual work due to her knee condition and resultant nerve injury. The applicant's own evidence suggested her duties changed upon returning to work, involving more filing, which exacerbated her knee pain and led to further pain in her shoulder and thumb due to reliance on a crutch. Crucially, the Tribunal found that no suitable alternative duties were offered to her.

The Tribunal was satisfied that the evidence supported a finding that the applicant remained incapacitated for work due to her accepted knee condition throughout the period from 7 June 2004 to 29 February 2012. Consequently, the Tribunal determined that the applicant was entitled to incapacity payments. The Tribunal set aside Comcare's reviewable decision and substituted it with a decision that the applicant is entitled to compensation payments for incapacity for the period 2 April 2008 to 29 February 2012. The matter was remitted to Comcare to determine the specific amount of weekly compensation payable.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 20 March 2017 the Tribunal determined that it had no jurisdiction to review the reviewable decision in so far as it concerned the applicant’s entitlement to incapacity payments for the period 7 June 2004 to 1 April 2008. Therefore the relevant period for the purposes of this decision is 2 April 2008 to 29 February 2012.BACKGROUND The applicant has made the following applications for review to the Administrative Appeals Tribunal:·a claim for permanent impairment (2003/18) (subsequently withdrawn by the applicant);·a claim for liability, incapacity payments and medical expenses relating to a right thumb and shoulder injury (2004/132) (subsequently withdrawn by the applicant) and permanent impairment in relation to the accepted knee condition; and·a claim for incapacity payments relating to the accepted knee condition from 7 June 2004 (2005/105) On 31 March 2008 the solicitors for the applicant and the respondent filed signed consent terms in relation to the claim for liability for the right thumb and shoulder condition, and signed consent orders in relation to incapacity payments for the accepted knee condition. On 1 April 2008 the Tribunal issued decisions in the terms of those consent memorandums affirming the denial of liability in relation to the right thumb and shoulder claim, and affirming the denial of liability for incapacity payments in relation to the accepted knee condition. On 5 June 2008 the Tribunal set aside the decision denying liability for permanent impairment and remitted the matter to the respondent with directions that the applicant was suffering 20% whole person impairment as a result of the accepted knee condition (Bacic and Comcare [2008] AATA 465). On 1 March 2012 the applicant had total knee replacement surgery on her right knee and was paid incapacity payments by the respondent from 1 March 2012 until 21 August 2012.ISSUES The issues for determination by this Tribunal are:(a)whether the applicant was incapacitated as a result of her accepted knee condition in the period 2 April 2008 to 29 February 2012 (the relevant period); and(b)if so, in respect of any such period of incapacity during the relevant period:(i)whether the applicant had an ability to earn in suitable employment; and(ii)whether the applicant is entitled to incapacity payments.LEGISLATION The respondent’s liability to pay compensation arises pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) which reads as follows:Compensation for injuries 1Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.… Section 19 of the SRC Act provides:Compensation for injuries resulting in incapacity1This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.2Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:…3Subject to this Part, Comcare is liable to pay compensation to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), of an amount calculated using the formula: …4In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to: (a)where the employee is in employment (including self-employment)--the amount per week that the employee is earning in that employment; (b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; (c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment--the amount per week that the employee would be earning in that employment if he or she were engaged in that employment; (d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition--the amount that the employee would be earning in that employment if he or she were engaged in that employment; (e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment--the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; (f)where paragraph (b), (c), (d) or (e) applies to the employee--whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and (g)any other matter that Comcare considers relevant. WAS THE APPLICANT INCAPACITATED AS A RESULT OF HER ACCEPTED KNEE CONDITION FROM 2 APRIL 2008 TO 29 FEBRUARY 2012?

Evidence

Evidence Before The Court

The applicant maintained that the pain in her shoulders was associated with the weight she applied to her walking stick, which she required to minimise the impacts from her right knee injury. The applicant had undergone surgery on her right shoulder in 2006 and on her left shoulder in 2007. The applicant’s evidence was that, despite her retirement in 2004, the pain in her right knee was ongoing between 2004 and 2008.Evidence of Mr John Mills Mr Mills prepared a report dated 27 November 2017 (Exhibit A4) regarding the applicant’s consultations between 2004 and 2012 in which he stated that, at a review on 26 March 2004, the applicant:remained with significant ongoing symptoms in her right foot consistent with the documented damage to her posterior tibial nerve. She remained on Neurontin tablets at a high dose, Endep, Panadeine Forte and Digesic.Her symptoms on review on the 25th June 2004 consisted of an ache in her right knee which was treated by using a crutch. Mrs Bacic tended to use a crutch on her right side as she did not feel that it provided as much support when using it on the left. She stated that she tended to trip over the crutch if she used it on the left side. Use of the crutch on the right side however tended to flare symptoms in her right shoulder where she had evidence of rotator cuff pathology and her right thumb where she had degenerative change in the carpometacarpal joint. Her right knee also caused a degree of insecurity and tended to let her down. She tended to use supports particularly on uneven ground and on steps and slopes. She reported a reduced range of flexion in the knee, limited by pain. She complained of ongoing problems in her foot which remained unchanged with pain and a burning sensation, a reduction in movement, and weakness.In that report, Mr Mills went on to state:At review on the 5th August 2004 Mrs Bacic remained with ongoing problems in her foot. She also complained of an exacerbation of symptoms involving the base of her right thumb. Her right shoulder continued to give her problems.Mrs Bacic was seen again in September and November 2004. She had ongoing problems with her right foot which had remain unchanged throughout 2004. ……In 2005 I saw her on the 10th February, 16th May, 26th August, 10th October and 15th December. She remained with persistent symptoms involving her right foot consistent with the diagnosis of damage to the posterior tibial nerve on this side. She had ongoing and increasing problems involving her right shoulder. An ultrasound scan of her right shoulder had demonstrated a complete tear of the anterior portion of supraspinatus with a significant subacromial bursa causing impingement at 60 degrees of abduction.…Reviews on the 16th January 2006, 10th April 2006 and September 2006 were mainly concerned with her right shoulder. I note that at the time of her review on the 10th April 2006 knee and foot symptoms remained the same and I provided her with a further prescription for Endep, Neurontin and Panadeine Forte. Her left shoulder remained manageable at that stage.At review on the 15th January 2007 Mrs Bacic reported episodes of giving way of her right knee. X-rays confirmed moderate change affecting the medial compartment of this knee consistent with the development of arthritic change. ……At her review in April 2007 her left shoulder was making a slow recovery. She had only 50% of the normal range of motion but felt that her strength was gradually improving. She stated that her right knee continued to feel unstable with persisting paraesthesia in the leg and foot. She remained with signs of damage to the posterior tibial nerve with both sensory and motor components.…In 2008 I saw Mrs Bacic on the 2nd February, 17th April, 4th August and 13th November. She reported frequent falls and increasing discomfort associated with her right knee. She had resumed using a crutch. She remained with ongoing problems associated with dysfunction of the posterior tibial nerve and was developing increasing symptoms associated with progressive arthritic change involving the medial aspect of her right knee. An x-ray taken towards the end of 2008 revealed moderate arthritic change involving the medial compartment. … Mrs Bacic re-attended in February 2009 having been involved in a motor vehicle accident in December 2008 when she drove into a ditch in an attempt to avoid hitting a wallaby which had wandered onto the road. She had suffered soft tissue injuries to her knees. Her left knee x-ray had shown a mild decrease in the medial joint space but this was nowhere near as severe as the x-ray changes noted in her right knee.I saw Mrs Bacic again in November 2009. At that time she stated that her knees were bad, particularly the right knee. X-rays revealed moderately severe arthritic changes involving the right knee with less significant changes seen on the left side.…Right knee replacement surgery was performed on Mrs Bacic on the 1st March 2012. The surgery was uncomplicated. She remained on crutches due to the ongoing problems associated with her posterior tibial nerve lesion.At review in February 2013 she reported that her right knee was functioning very well. Her x-ray remained satisfactory. She reported increasing problems with her left knee. Further problems with her left knee were noted at review on March 2014 and again in May 2014, and she underwent left-sided knee replacement surgery on the 17th July 2014.

Decision

Reasons for decision

The Tribunal is satisfied that the evidence supports a finding that when the applicant accepted the offer of redundancy made on 5 November 2004 and subsequently confirmed by the respondent on 10 November 2004, she was totally incapacitated for work on account of her accepted knee condition. The Tribunal finds that the applicant remained incapacitated for work during the period 7 June 2004 to 29 February 2012 and is entitled to be paid incapacity payments. The amount of weekly compensation is to be calculated under s 19 of the SRC Act. The Tribunal does not consider that any of the deemed capacity to earn from suitable employment provisions of s 19(4) are applicable in the applicant’s circumstances.DECISION It is the Tribunal’s decision that the reviewable decision dated 18 March 2015 be set aside and substituted with the decision that:(i)the applicant is entitled to compensation payments for incapacity for the period 2 April 2008 until 29 February 2012; (ii)the matter is remitted to the respondent to determine the amount of weekly compensation payable to the applicant pursuant to s 19 of the SRC Act; and (iii)any application for costs be made by the applicant by 5:00pm on Monday 16 July 2018 and any submissions in reply from the respondent by 1:00pm on Wednesday 18 July 2018.

Ratio Decidendi

Legal Principle Established

It is notable that the respondent’s initial decision of 26 November 2014 relied upon the evidence in Dr Stewart’s report of 2 July 2007 regarding the applicant’s capacity to work in a primarily seated role and his statement that her original job with HIC would be ideal. Dr Stewart was apparently unaware that the applicant’s employer did not consider that she was fit to continue with her original duties processing claims at the front counter and interacting with clients, and had made arrangements for her to assess claims away from the front counter. Dr Stewart’s opinion was that the applicant should be in employment where she was primarily seated. However, the applicant’s evidence was that such work was not made available to her when she was moved to head office.Consideration The term ‘incapacity for work’ is defined in s 4(9) of the SRC Act as an incapacity to engage in any work or an incapacity to engage in work at the same level at which the applicant was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened. In Fleming and Comcare [2011] AATA 936 the Tribunal stated (at [20]):[t]o my mind, restrictions of this kind, in effect light all restricted duties, may exist within the concept of incapacity for work for the purposes of section 4(9)(b) of the Act. The words ‘work at the same level’ are not confined in meaning to the salary, class or grade of the particular employment, but also refer to the characteristics of the work in terms of, for example, the nature, complexity and duration of tasks, as well as the quality of the work itself. While it may be accepted, as in Re Moon and Telstra Corporation Ltd, that minor changes in duties before and after an injury may not represent an incapacity for work, this is not such a case. To my mind, the restrictions on Ms Fleming’s capacity to undertake certain tasks, albeit relatively minor, are consistent with an incapacity to engage in work at the same level as prior to her injury in 2002. Mr Mills gave evidence that the applicant ‘was incapacitated for engaging in her usual work with Medicare during the period 2008 to 2012 as a result of her knee condition and the resultant complication of posterior tibial nerve injury’. The applicant was certified by Mr Mills in June 2004 as incapacitated for work for specified periods. The applicant gave evidence that the nature of her duties changed when she was moved to head office in that she was expected to undertake more filing activities. She said she found these increasingly difficult to manage due to her knee condition. There seems to be no argument that the applicant was no longer able to perform the claims assessment duties that she was performing immediately prior to her injury. The evidence was that on her return to work she undertook claims assessment work in a back office as she was no longer able to work at the counter and interact with clients. The applicant said that no suitable alternative duties were offered to her when she moved to the head office. She described how the nature of the filing duties exacerbated her knee pain and required her to lean on her crutch, which, in turn, caused shoulder and thumb pain. The applicant subsequently consulted her medical practitioner for a medical certificate. She left work in early June 2004 and did not return.