Bevilacqua and Comcare (Compensation) - [2023] AATA 4878

Bevilacqua and Comcare (Compensation) [2023] AATA 4878 (3 July 2023)
Division:GENERAL DIVISION
File Number(s): 2018/4766, 2020/4566
Re:Aaron Bevilacqua
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:3 July 2023
Place:Melbourne

In respect of matters number 2018/4766 and 2020/4566 the decisions under review are set aside and substituted for a decision as follows:
(a)The respondent continues to be liable in respect of the applicant’s previously accepted back injury and depressive disorder condition for the purpose of sections 16 and 19 of the SRC Act.
(b)The respondent is liable in respect of the applicant’s chronic pain syndrome condition for the purpose of sections 14 of the SRC Act.
(c)On and from 2 May 2018 to the present date the respondent is to pay to the applicant:
(i)all reasonable medical and related treatment expenses incurred in respect of the applicant’s accepted conditions pursuant to section 16 of the SRC Act;
(ii)weekly payments of compensation in respect of incapacity for work pursuant to section 19 of the SRC Act on the basis that the applicant’s ability to earn is no more than the actual earnings.

(d)The respondent is to pay the applicant’s reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

...[sgn].....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
Workers Compensation (Cth) – Back injury – Psychological injury – Chronic pain – Whether injury arose out of or during the course of employment – Previously accepted injury – Whether previously accepted back injury was fully resolved – Workplace bullying – Decisions under review are set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Re Prica and Comcare (1996) 44 ALD 46
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157
Smith and Comcare [2002] AATA 249
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
3 July 2023
INTRODUCTION

This matter involves two concurrent applications.
Relevant to both applications the respondent has previously accepted liability to pay compensation to the applicant in respect of:
(a)an aggravation of lumbar sprain sustained on 16 February 2004 (2004 back injury); and
(b)a depressive disorder secondary to the accepted back injury (depressive disorder).
In the first application (2018/4766) the applicant seeks review of a reviewable decision dated 28 June 2018 which affirmed an earlier decision made by a delegate of the respondent dated 2 May 2018 which determined that from 3 May 2018 the respondent was not presently liable to pay compensation to the applicant for medical treatment and incapacity for work in respect of the previously accepted back injury and the previously accepted psychological injury under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
In the second application (2020/4566) the applicant seeks review of a reviewable decision dated 15 June 2020 that affirmed an earlier decision made by a delegate of the respondent dated 2…

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 Bevilacqua and Comcare (Compensation)

Details

AGLC: Bevilacqua and Comcare (Compensation) [2023] AATA 4878
Case: [2023] AATA 4878
Decision Date: 3 July 2023

CaseChat Overview and Summary

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a claim for workers' compensation. The applicant, Mr Bevilacqua, sought compensation from Comcare for a previously accepted back injury sustained in 2004, a subsequent depressive disorder, and a chronic pain condition. The central dispute revolved around whether the applicant's previously accepted conditions had fully resolved and whether any ongoing symptoms, including chronic pain, were causally linked to his employment. Comcare contended that the applicant's 2004 back injury was resolved by May 2018 and that any subsequent conditions were unrelated to his employment, thus ceasing liability for compensation. The applicant, however, argued that his back injury and depressive disorder had not resolved and that he continued to suffer from a chronic pain condition arising from his injury and workplace treatment, entitling him to ongoing compensation.

The Tribunal was required to determine two primary legal issues. Firstly, whether Comcare remained liable to pay compensation for medical treatment and incapacity for work in respect of the applicant's previously accepted 2004 back injury and depressive disorder from May 2018 to the present, pursuant to sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Secondly, the Tribunal had to determine whether Comcare was also liable to pay compensation for a chronic pain condition under section 14 of the SRC Act. The determination of these issues involved assessing extensive medical evidence from various specialists, including reports from orthopaedic surgeons, neurosurgeons, psychiatrists, and rheumatologists, as well as oral evidence from the applicant and his treating doctors.

The Tribunal considered the evidence and concluded that the applicant's previously accepted back injury and depressive disorder had not fully resolved. It found that Comcare continued to be liable for compensation in relation to these conditions. Furthermore, the Tribunal was satisfied that the applicant suffered from a chronic pain syndrome condition that also warranted compensation. Consequently, the Tribunal set aside the decisions under review and substituted them with a decision recognising Comcare's ongoing liability. This included liability for medical treatment and weekly payments for incapacity for work from May 2018 to the present, in respect of both the previously accepted conditions and the chronic pain syndrome. Comcare was also ordered to pay the applicant's legal costs.

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

For these reasons, the Tribunal is satisfied that the correct or preferable decision in this matter is that the decision under review be set aside and substituted for a decision recognising the respondent’s ongoing liability to pay compensation pursuant to sections 16 and 19 of the SRC Act in respect of the applicant’s previously accepted 2004 back injury and depressive disorder and also in respect of the applicant’s chronic pain syndrome condition. DECISION In respect of matters number 2018/4766 and 2020/4566 the decisions under review are set aside and substituted for a decision as follows:(a)The respondent continues to be liable in respect of the applicant’s previously accepted back injury and depressive disorder condition for the purpose of sections 16 and 19 of the SRC Act.(b)The respondent is liable in respect of the applicant’s chronic pain syndrome condition for the purpose of sections 14 of the SRC Act.(c)On and from 2 May 2018 to the present date the respondent is to pay to the applicant:(i)all reasonable medical and related treatment expenses incurred in respect of the applicant’s accepted conditions pursuant to section 16 of the SRC Act;(ii)weekly payments of compensation in respect of incapacity for work pursuant to section 19 of the SRC Act on the basis that the applicant’s ability to earn is no more than the actual earnings.(d)The respondent is to pay the applicant’s reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the SRC Act.

Ratio Decidendi

Legal Principle Established

The issues for determination by the Tribunal are:(a)whether or not the respondent continues to be liable to pay compensation to the applicant for medical treatment and incapacity for work in respect of the previously accepted 2004 back injury and previously accepted depressive disorder under sections 16 and 19 of the SRC Act during the period from 3 May 2018 to the present; and(b)whether or not the respondent also has a liability to pay compensation to the applicant in respect of a chronic pain condition under section 14 of the SRC Act.CONSIDERATION The evidence before the Tribunal includes the following materials:i.Report of Mr John O'Brien dated 7 May 2019 (A1) ii.Report of Mr Nigel Strauss dated 6 June 2019 (A2)iii.Supplementary Report of Mr Nigel Strauss dated 6 August 2019 (A3)iv.Report of Dr Antonella Ventura dated 4 May 2020 (A4) v.Report of Dr Melissa Barrett dated 22 December 2020 (A5) vi.Statement of Applicant dated 1 October 2019 (A6) vii.Clinical notes from Western hospital dated 20 November 2020 (A7) viii.T-Documents 2018/4766 (R1) ix.T-Documents 2020/4566 (R2) x.Report of A/Prof Mendelson (consultant psychiatrist) and letter of instruction dated 30 April 2019 (R3) xi.Report of A/Prof Mendelson (consultant psychiatrist) and letter of instruction dated 17 November 2020 (R4) xii.Report of Dr Brazenor (neurosurgeon) (and letter of instruction) dated 17 April 2019 (R5) xiii.Report of A/Prof Romas (consultant rheumatologist) (and letter of instruction) dated 31 August 2020 (R6) xiv.Supplementary report of Dr Brazenor dated 23 August 2021 (R7)xv.Respondent’s tender bundles, pages 188, 189, 192 (R8) xvi.Respondents tender bundles page 193, CT lumbar spine report dated 4 October 2001 (R9) xvii.The applicant gave oral evidence at the hearing and called Dr John O’Brien and Dr Nigel Strauss. xviii.The respondent called Associate Professor Mendelson, Dr Brazenor and Associate professor Romas. The respondent contends that the applicant’s previously accepted back injury was completely resolved as at 2 May 2018 and that any ongoing symptoms the applicant continues to suffer are unrelated to the incident that occurred on 16 February 2004, or otherwise to the applicant’s employment. The respondent also contends that on the basis that the applicant’s previously accepted 2004 back injury has completely resolved, as at 2 May 2018 it is no longer liable for compensation including medical treatment and incapacity payments in connection with that injury or the secondary condition of depressive disorder, pursuant to sections 16 and 19 of the SRC Act. The applicant contends that his previously accepted 2004 back injury has not resolved and that the applicant’s depressive disorder continues to be materially contributed to by the applicant’s previous employment. The applicant contends that he also suffers from a chronic pain condition that emerged following his 2004 back injury as well as his treatment in the workplace. The applicant contends that from 2 May 2018 he has continued to be incapacitated for work as a result of his conditions and is entitled to compensation payments in respect of that incapacity.