Bennett and Comcare (Compensation) - [2024] AATA 204

Bennett and Comcare (Compensation) [2024] AATA 204 (15 February 2024)
Division:GENERAL DIVISION
File Number(s): 2021/3059
2022/2765

Re:Rosalie Bennett
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:15 February 2024
Place:Perth

Application 2021/3059 – The Reviewable Decision dated 25 March 2021 is affirmed.
Application 2022/2765 – The Reviewable Decision dated 6 January 2022 is affirmed.
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L M Gallagher, Member
CATCHWORDS
COMPENSATION – Commonwealth employee – accepted injury – repetitive strain injury – distinction between injury and ailment – whether the Applicant’s condition is the same condition for which liability was previously accepted – whether the condition remains a condition contributed to by the Applicant’s employment – whether physiotherapy treatment is ‘medical treatment’ for the purpose of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 53, 124(1)(c)
Compensation (Commonwealth Government Employees) Act 1971 (Cth) ss 5, 16, 27(1), 29(1)(a)
CASES
Treloar v Australian Telecommunications Commission [1990] FCA 511; 26 FCR 316
Woodhouse v Comcare (2021) 285 FCR 14
REASONS FOR DECISION
L M Gallagher, Member
15 February 2024
THE APPLICATION

The Applicant seeks review of two of the Respondent’s decisions, hence there are two applications before the Tribunal:
(a)Application 2021/3059 (Application 2021/3059).
(b)Application 2022/2765 (Application 2022/2765).
Application 2021/3059
The Respondent’s decision dated 25 March 2021 affirmed a determination dated 21 January 2021 (Reviewable Decision No. 1).[1]
[1] R1, T21.
The determination dated 21 January 2021 determined that in respect of the Applicant’s accepted claim for ‘repetitive strain injury to right side of neck, right wrist and shoulder’, the Respondent was not liable to pay compensation to the Applicant for medical treatment, namely physiotherapy treatment obtained on:
(a)15 January 2019;
(b)22 January 2019;
(c)10 April 2019;
(d)16 April 2019;
(e)16 July 2019; and
(f)23 July 2019,
pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) (Original Decision No. 1).[2]
[2] R1, T17.
Application 2022/2765
The Respondent’s decision dated 6 January 2022 affirmed a determination dated 15 November 2021 (Reviewable Decision No. 2).[3]
[3] R2, T19.
The determination dated 15 November 2021 determined that the Applicant had no present entitlement to compensation for medical expenses under s 16 of the SRC Act from 6 October 2021 in respect of her accepted claim for ‘repetitive strain injury (right) arm’ (Original Decision No. 2).[4]
ISSUES
[4] R2, T13.
Application 2021/3059
The issues for the Tribunal in Application 2021/3059 are:
(a)What ailment or injury does the Applicant currently suffer from, and, is it the same condition for which liability was previously accepted?[5]
(b)If the Applicant currently suffers from a condition best classified as an injury, was the Applicant still suffering the effects of it by the time she commenced obtaining the claimed medical treatment on 15 January 2019?
(c)If the Applicant currently suffers from a condition best classified as an ailment, does the present…

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 Bennett and Comcare (Compensation)

Details

AGLC: Bennett and Comcare (Compensation) [2024] AATA 204
Case: [2024] AATA 204
Decision Date: 15 February 2024

CaseChat Overview and Summary

This matter concerned an application by a former Commonwealth employee, the Applicant, against Comcare, the Respondent, regarding compensation for a repetitive strain injury. The Applicant had previously been accepted as suffering from a repetitive strain injury to her right side of the neck, right wrist, and shoulder, and subsequently, a repetitive strain injury to her right arm, with liability also accepted for her left shoulder and arm. The core dispute revolved around whether the Applicant's current condition constituted the same injury for which liability was previously accepted, and if so, whether it remained a condition contributed to by her employment, thereby entitling her to ongoing compensation for physiotherapy treatment under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The legal issues before the Tribunal were multifaceted. Firstly, it was necessary to determine the nature of the Applicant's current ailment or injury and whether it was identical to the conditions for which liability had been previously accepted. Secondly, if the current condition was classified as an injury, the Tribunal had to ascertain if the Applicant was still suffering its effects from specific dates relevant to her claims. Thirdly, if the condition was classified as an ailment, the Tribunal was required to determine if it continued to be an ailment contributed to by the Applicant's employment. Finally, if these conditions were met, the Tribunal had to assess whether the Respondent was liable to pay for physiotherapy treatment, considering whether such treatment qualified as 'medical treatment' under the SRC Act, was obtained in relation to an injury, and was reasonable in the circumstances.

The Tribunal considered the medical evidence, particularly reports from Dr. Floyd, an occupational physician. Dr. Floyd opined that the Applicant's current complaints of pain in her neck, shoulders, and arms were best characterised as 'non-specific musculoskeletal pain,' which he described as the contemporary term for muscular ache and pain, and previously known as RSI. He further stated that there was no specific injury pathology identified and that any initial strain or overload from her past employment would have resolved within a short period. Based on this evidence, the Tribunal found that the Applicant's current condition was non-specific musculoskeletal pain, which was not the same specific injury for which liability had been initially accepted.

Consequently, the Tribunal determined that the Applicant did not currently suffer from the same injury for which liability was previously accepted. As such, the conditions for entitlement to compensation for medical treatment under section 16 of the SRC Act were not met. The Tribunal's determination was that the Applicant had no present entitlement to compensation for medical expenses from the specified dates in relation to her accepted claims.

Orders

Orders of the court

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Background

Background to the litigation

The issues for the Tribunal in Application 2022/2765 are:(a)What ailment or injury does the Applicant currently suffer from, and, is it the same condition for which liability was previously accepted?[6](b)If the Applicant currently suffers from a condition best classified as an injury, was the Applicant still suffering the effects of it on and after 6 October 2021?(c)If the Applicant currently suffers from a condition best classified as an ailment, does the present ailment (suffered on and from 6 October 2021) remain an ailment that was contributed to by the Applicant’s employment?(d)If so, is the Respondent liable to pay compensation in respect of it for medical treatment under s 16 of the SRC Act? This requires the Tribunal to consider:(i)Whether the physiotherapy treatment is ‘medical treatment’ for the purpose of the SRC Act?(ii)Whether the physiotherapy treatment is obtained ‘in relation to’ an injury? (iii)Whether the physiotherapy treatment is ‘reasonable to obtain in the circumstances?’[6] The previously accepted condition being ‘repetitive strain injury (right) arm.’BACKGROUND On 24 August 1970, the Applicant commenced employment with the Department of Social Security.[7][7] R1, T9, p 56. On 12 April 1985, liability was accepted for ‘repetitive strain injury to right side of neck, right wrist and shoulder.’[8][8] Liability was accepted under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). The Respondent filed a copy of its determination dated 12 April 1985 with the Tribunal on 14 June 2021 (A1). On 19 August 1985, the Applicant lodged a claim for compensation with respect to a repetitive strain injury in her left shoulder and left arm claimed to have been suffered on 4 June 1985.[9][9] R1, T18, pp 161-162. According to the Applicant, she had suffered an injury to her left and right arms and that they became apparent at different times while performing the same types of duties (R1, T18, p 163). Based on medical advice, on 31 January 1986 the Respondent decided to treat the Applicant’s repetitive strain injury claims as one. As all payments made by the Respondent to that date were in respect to the Applicant’s first repetitive strain injury claim, the Respondent advised that ‘nothing will change in future’ (R1, T18, p 165). From 3 February 1994, the Respondent paid for the Applicant’s physiotherapy treatment.[10][10] R6, Annexure A. On 4 April 1999, the Applicant accepted a voluntary redundancy and ceased employment with the Department of Social Security.[11] [11] R1, T9, p 50. On 19 April 1999, the Applicant commenced work at a private accounting firm.[12][12] R4, p 657. On 1 December 2017, the Applicant signed a claim form in relation to her ‘right arm, right shoulder and neck injury.’[13] On the form, the Applicant indicated that she first noticed her symptoms on 10 March 1985. The Applicant states she was injured from performing ‘mainframe computer processing’ and ‘working overtime’.[14][13] R1, T6.[14] R1, T6, p 35.

Evidence

Evidence Before The Court

In order for the Applicant to be deemed to continue to suffer the disease for which liability was previously accepted, the causal nexus between the Applicant’s employment and the suffering of the disease must continue unbroken, that is:[31]it must retain the continuing characteristic that it was contributed to in the necessary degree by the employment. If at any later point in time the ailment suffered by an employee ceases to have that character, it will cease to be a “disease”…[31] Woodhouse v Comcare (2021) 285 FCR 14 at [33]-[34], [85] (per Derrington J).EVIDENCE The matter was heard in Perth on 14 June 2023. The Applicant was self-represented. The Respondent was represented by Counsel, Ms Kate Slack. Ms Slack was instructed by Ms Daphne Jones-Bolla, of Sparke Helmore Lawyers. All parties appeared in person. No witnesses were called. The Tribunal admitted the following documents into evidence:(a)Applicant’s submissions with attachments, dated 9 June 2021 (A1);(b)Applicant’s submissions and evidence with attachments, dated 3 December 2021 (A2);(c)Applicant’s letter dated 20 June 2022 enclosing five medical reports, various dates (A3);(d)Report of Dr Evan Jenkins, medicolegal consultant (general practitioner), dated 16 June 2022 (A4);(e)Applicant’s letter to Tribunal, dated 7 October 2022 (A5);(f)Respondent’s section 37 T documents for Application 2021/3059, being documents T1 to T24 and comprising 237 pages, filed 10 June 2021 (R1);(g)Respondent’s section 37 T documents for Application 2022/2765, being documents T1 to T15 and comprising 56 pages, filed 4 May 2022 (R2);(h)Respondent’s Summons Bundle (Part 1) for Application 2021/3059, being documents 1 to 4 and pages 1 to 601, filed 21 October 2023 (R3);(i)Respondent’s Summons Bundle (Part 2) for Application 2021/3059, being documents 1 to 5 and pages 602 to 821, filed 8 November 2021 (R4);(j)Reports of Stella Peters, physiotherapist, dated 8 September 2017, 30 April 2021 and 3 September 2021 (R5);(k)Respondent’s Statement of Facts, Issues and Contentions (SFIC), with attachments, dated and filed 20 September 2022 (R6);(l)Report of Dr Mark Floyd, consultant occupational physician, dated 12 August 2020 (R7);(m)Respondent’s letters of instruction to Dr Floyd, dated 10 September 2018, 15 July 2020 and 10 February 2022 (R8);(n)Report of Dr Floyd, dated 25 March 2022 (R9); and(o)Copy of Clinical Framework – For the Delivery of Health Services (R10). At the hearing, the Respondent provided to the Tribunal and to the Applicant a written outline of closing submissions. The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address the material, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.CONSIDERATIONParties’ positions The Applicant is of the view that she still suffers from repetitive strain injury, although in a milder form than what she originally suffered.[32] The Applicant considers that by reimbursing her past medical expenses, the Respondent has ‘admitted their shortcomings’[33] and that she remains entitled to ongoing reimbursement.[34][32] Transcript, p 17.[33] A1, p 2.[34] A1, p 3.

Decision

Reasons for decision

The determination dated 15 November 2021 determined that the Applicant had no present entitlement to compensation for medical expenses under s 16 of the SRC Act from 6 October 2021 in respect of her accepted claim for ‘repetitive strain injury (right) arm’ (Original Decision No. 2).[4]ISSUES[4] R2, T13.Application 2021/3059 The issues for the Tribunal in Application 2021/3059 are:(a)What ailment or injury does the Applicant currently suffer from, and, is it the same condition for which liability was previously accepted?[5](b)If the Applicant currently suffers from a condition best classified as an injury, was the Applicant still suffering the effects of it by the time she commenced obtaining the claimed medical treatment on 15 January 2019?(c)If the Applicant currently suffers from a condition best classified as an ailment, does the present ailment (suffered on and from 15 January 2019) remain an ailment that was contributed to by the Applicant’s employment?(d)If so, is the Respondent liable to pay compensation in respect of it for medical treatment under s 16 of the SRC Act? This requires the Tribunal to consider:(i)Whether the physiotherapy treatment is ‘medical treatment’ for the purpose of the SRC Act?(ii)Whether the physiotherapy treatment is obtained ‘in relation to’ an injury? (iii)Whether the physiotherapy treatment is ‘reasonable to obtain in the circumstances?’ [5] The previously accepted condition being ‘repetitive strain injury to right side of neck, right wrist and shoulder.’Application 2022/2765 The issues for the Tribunal in Application 2022/2765 are:(a)What ailment or injury does the Applicant currently suffer from, and, is it the same condition for which liability was previously accepted?[6](b)If the Applicant currently suffers from a condition best classified as an injury, was the Applicant still suffering the effects of it on and after 6 October 2021?(c)If the Applicant currently suffers from a condition best classified as an ailment, does the present ailment (suffered on and from 6 October 2021) remain an ailment that was contributed to by the Applicant’s employment?(d)If so, is the Respondent liable to pay compensation in respect of it for medical treatment under s 16 of the SRC Act? This requires the Tribunal to consider:(i)Whether the physiotherapy treatment is ‘medical treatment’ for the purpose of the SRC Act?(ii)Whether the physiotherapy treatment is obtained ‘in relation to’ an injury? (iii)Whether the physiotherapy treatment is ‘reasonable to obtain in the circumstances?’[6] The previously accepted condition being ‘repetitive strain injury (right) arm.’BACKGROUND On 24 August 1970, the Applicant commenced employment with the Department of Social Security.[7][7] R1, T9, p 56. On 12 April 1985, liability was accepted for ‘repetitive strain injury to right side of neck, right wrist and shoulder.’[8][8] Liability was accepted under the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (1971 Act). The Respondent filed a copy of its determination dated 12 April 1985 with the Tribunal on 14 June 2021 (A1).

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address the material, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.CONSIDERATIONParties’ positions The Applicant is of the view that she still suffers from repetitive strain injury, although in a milder form than what she originally suffered.[32] The Applicant considers that by reimbursing her past medical expenses, the Respondent has ‘admitted their shortcomings’[33] and that she remains entitled to ongoing reimbursement.[34][32] Transcript, p 17.[33] A1, p 2.[34] A1, p 3. The Applicant gave evidence that:[35]For many years I have been able to manage my RSI [repetitive strain injury] with regular physiotherapy sessions (2 or 3) every few months. I find a great relief after these sessions. Every once in a while I have a flare up with concentrated pain in one area but my physio is able to relieve the pain with her treatment.These regular physio sessions I class as maintenance and I do not want to go back to the debilitating headaches I used to get.[35] A1, p 3. In summary, the Respondent contends that:(a)The Applicant presently suffers from a disease being an ailment under s 5 of the 1971 Act, characterised as ‘non-specific musculoskeletal pain’ (left and right).[36](b)The Applicant’s previous Commonwealth employment does not contribute to the Applicant’s present condition and, as such, liability does not arise under s 16 of the SRC Act (‘contributed to’ being the causative test under the 1971 Act). This view is based on Dr Floyd’s opinion that there is no condition since 2019, or presently, impacting the Applicant’s neck, her left side or her right side that was contributed to by her Commonwealth employment.(c)Alternatively, the criteria in s 16 of the SRC Act should not be found to be satisfied and, as such, liability does not arise to pay for the claimed physiotherapy treatments. This is on the basis that treatment is not being obtained in relation to an injury and that it is not reasonable treatment in the circumstances. From what ailment or injury does the Applicant currently suffer from and, is it the same condition for which liability was accepted?[36] R6, [4.10], [4.11]. As set out above,[37] and in relation to both applications before the Tribunal, the first issue for determination is the ailment or injury the Applicant currently suffers from and whether it is the same condition for which liability was accepted.[37] See [6] and [7] above. The Respondent previously accepted liability for the Applicant’s:(a)Repetitive strain injury to right side of neck, right wrist and shoulder;[38] (b)Repetitive strain injury (right arm);[39] and(c)For all intents and purposes, repetitive strain injury left shoulder and arm.[40][38] See [3] and [9] above.[39] See [5] above.[40] See [10] above. The Tribunal has considered the available medical evidence and finds that in respect of both Application 2021/3059 and Application 2022/2765, the Applicant presently suffers from non-specific musculo-skeletal pain in the neck, both shoulders and arms (that is, left and right sided). In making this finding, the Tribunal relies on the following evidence:(a)In his report dated 25 March 2022, Dr Floyd gave the opinion that the Applicant’s left shoulder, neck and medial elbow complaint is accounted for by non-specific musculo-skeletal pain, being the contemporary name for muscular ache and pain and also previously known as RSI.[41](b)In his report dated 27 September 2018, Dr Floyd gave the opinion that the Applicant has what is currently described as ‘nonspecific pain’, that is, there is no specific clear or organic pathology to account for her symptoms. Moreover it is a pain and discomfort phenomenon that likely has soft tissue musculoskeletal origins without clearly identifiable pathology.[42](c)In his report dated 12 August 2020, Dr Floyd reported:[43]There is no clear indication of a specific injury pathology. That is [sic] there is no indication [the Applicant] sustained anything other than mild soft tissue injury at the time of her original onset. The cause for her persistent complaint does not appear to be related to any specific tissue injury or tissue structure, moreover she has non-specific musculoskeletal pain. The term non-specific is used to indicate that there is no specific pathology to account for her persistent complaint. She has had extensive investigation over time and no clear pathology that would account for her symptoms has been identified.…If there was a sprain or strain from overload in 1985…[or] from [the Applicant’s] work exposures [then] this would have resolved over a six to eight week period…[41] R9, p 7 of report.[42] R1, T11, p 16 of report.[43] R7, pp 6 and 9 of report. See also p 7 of report.