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…
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- Case
- [2024] AATA 2075
- Decision Date
CaseChat Overview and Summary
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
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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
Ratio Decidendi
Legal Principle Established
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