Berkes and Comcare (Compensation) (Compensation) - [2024] AATA 2075

Berkes and Comcare (Compensation) (Compensation) [2024] AATA 2075 (26 June 2024)
Division:GENERAL DIVISION
File Number(s): 2019/7389; 2020/4933 & 2021/0311
Re:Ms Irene BERKES
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM KC
Date:26 June 2024
Place:Sydney

The three reviewable decisions are affirmed.
.............................[SGD]...........................................
Deputy President B W Rayment OAM KC
CATCHWORDS
2019/7389 — COMPENSATION - whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claim for compensation for chronic pain syndrome – whether condition was caused by or contributed to, to a significant degree, by prior injuries (s. 5B test) – decision under review affirmed
2020/4933 — COMPENSATION - whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claim for compensation for a pain management program – whether s. 5B test is satisfied – decision under review affirmed
201/0311 whether the Applicant is entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) – claim for compensation for aggravation of major depressive disorder – whether s. 5B test is satisfied – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Deputy President B W Rayment OAM KC
26 June 2024

The reviewable decision of 6 November 2019, affirming a determination to decline liability for compensation under s.14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of chronic pain syndrome, sets out a short summary of the then background to that claim of the applicant. It can serve as a short form introduction to that claim. It said:
·[The applicant] has an accepted claim for tear of lateral cartilage or meniscus of knee (right) and aggravation of internal derangement of knee (left) ([the applicant’s] compensable conditions sustained on 20 June 2007 and 31 December 2007 respectively. [The applicant’s] right knee injury occurred when [she] stood up suddenly to answer the phone and twisted [her] right knee. The left knee injury was attributed to a prolonged period of partial weightbearing on the left side following right knee arthroscopic surgery.
·On 9 April 2019, [the applicant] completed a Notification of a Newly Reported Condition form claiming compensation for CPS. [The applicant] claimed this new injury was ‘in conjunction with [her] knee injuries’.
·On 3 October 2019, Comcare declined CPS noting there was no causal relationship between [the applicant’s] claim for CPS and [her] compensable conditions.
·On 4 October 2019, [the applicant’s] solicitor, on [her] behalf requested a reconsideration of this determination as they considered Comcare had erred in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
·The finding was that there was no conclusive information to support [that the applicant] had sustained a condition or an aggravation of a condition, namely CPS. Those findings were based on the following:
·There had been no specific and accurate diagnosis provided by a medical practitioner to support…

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.

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Details

Case: [2024] AATA 2075
Decision Date: 26 June 2024

CaseChat Overview and Summary

This matter concerned appeals by the applicant, Mr Berkes, against decisions by Comcare to deny compensation claims under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The claims related to chronic pain syndrome, a pain management program, and the aggravation of major depressive disorder. The central dispute revolved around whether the applicant's conditions were caused by, or contributed to, to a significant degree by prior injuries, as required by section 5B of the Act.

The court was required to determine whether the applicant had satisfied the test under section 5B of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for each of the compensation claims. This involved assessing whether the applicant's claimed conditions were caused or contributed to, to a significant degree, by injuries sustained in the course of his employment.

The Deputy President considered the evidence of several medical practitioners, including Dr Allan, Dr Ho, Dr Ventura, Dr Richmond, and Dr McGill. The applicant argued that Dr Richmond's evidence should be preferred over Dr McGill's. However, the Deputy President found Dr McGill's opinion, as an experienced rheumatologist whose evidence was received without objection, to be entitled to significant consideration. The Deputy President rejected the submission that Dr McGill's evidence should be disregarded because he was not a pain specialist. Ultimately, the Deputy President found Dr McGill's evidence to be the most helpful of the three medical witnesses considered, and for reasons including the applicant's representative not cross-examining Dr McGill, preferred his evidence over that of Dr Richmond and Dr Ho. Consequently, all three reviewable decisions were affirmed.

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

Since Dr Allan’s deferred to Dr Ho on those matters, his evidence does not assist the applicant on the second reviewable decision, which also should be affirmed. Mr Mrsic did not cross-examine Dr Ventura, a psychiatrist who took a different view to Dr Allan. That is a matter of no moment in the case because it is not necessary to consider the merits of Dr Allan’s opinion. DECISION The detailed findings I have made are not confronted by any submissions of the applicant in final submissions. I heard the respondent’s oral submissions in support of its case on 10 May 2024, but the applicant relied upon the written submissions. The applicant submitted that Dr Richmond’s evidence should be accepted in preference to the evidence of Dr McGill. The opinion of Dr McGill, as an experienced rheumatologist and whose evidence was received without objection, is entitled to consideration by the Tribunal in my opinion. The applicant suggests that because he is not a pain specialist, his evidence ought to be rejected by the Tribunal or put to one side. I reject that submission and for reasons already given, which include the failure of the applicant’s representative to cross-examine him, I have preferred his evidence to that of Dr Richmond for other reasons mentioned earlier. While accepting that the evidence of Dr Ho may be entitled to less weight because he was not called by the applicant, perhaps because of his unavailability, despite the applicant’s submissions, I have treated the evidence of Dr Richmond as preferable to that of Dr Ho in any event. It is the evidence of Dr McGill which has assisted me most of the three witnesses, including Dr Ho and Dr Richmond. Each of the three reviewable decisions will therefore be affirmed.

Ratio Decidendi

Legal Principle Established

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