Black and Comcare (Compensation) - [2020] AATA 929

Black and Comcare (Compensation) [2020] AATA 929 (21 April 2020)
Division:General Division
File Number(s): 2017/6131
Re:Anthony Black
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Member M O’Loughlin & Member D Ben-Tovim
Date:21 April 2020
Place:Adelaide

The Tribunal orders that the decision of Comcare dated 21 September 2017 is set aside and substituted with orders:
1.That the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of his bursitis (right) condition which is a continuation of the injury that he sustained on 12 September 2008.
2.That the respondent is liable to pay the applicant compensation under sections 16 and 19 of the Act in respect of his adjustment disorder with depressive reaction.
3.That the respondent pay the applicant’s legal costs and disbursements of this application.

...................................................................
M O’LOUGHLIN
(Presiding Member)

Catchwords
COMPENSATION – Workers’ Compensation – whether applicant continues to suffer from accepted conditions – assessment of expert medical evidence – decision under review set aside and substituted with a decision that applicant continues to suffer from accepted conditions.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Prain v Comcare [2017] FCAFC 143
Commonwealth of Australia v Snell [2019] FCAFC 57
REASONS FOR DECISION
21 April 2020
MEMBER M O’LOUGHLIN & MEMBER D BEN-TOVIM

This is an application for review of a 12 September 2017 decision of the respondent, Comcare, to affirm a decision that it had no ongoing liability to the applicant for medical expenses or incapacity payments under section 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
Historically, the applicant sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for injuries suffered in a fall on 12 September 2008 and for the sequelae of those injuries. On 18 June 2009, the respondent accepted liability to the applicant for a bursitis disorder (right). The applicant’s subsequent claim for a secondary ‘adjustment disorder with depression’ was accepted by the respondent in the course of Tribunal proceedings regarding the 18 June 2009 decision.
The issues for determination in this application are, broadly, whether the respondent remained liable to the applicant in respect of the previously accepted conditions of bursitis disorder (right) and ‘adjustment disorder with depression’ as at 12 September 2017. Those questions essentially turn on whether the Tribunal prefers the evidence of the applicant’s or respondent’s medical witnesses.
EVIDENCE
The applicant’s evidence in chief was essentially contained in his signed statement of 6 June 2019.[1]
[1] Exhibit A8.
The applicant’s evidence is that he was born on 18 June 1966 in Mount Gambier. He went to school until year 11 when he took up a traineeship at Coles supermarkets.
In about 1989 he started work as a trade assistant for a panel beater and ultimately worked painting cars, commercial vehicles, and equipment.
He did this in various roles but was generally self-employed or working on a casual or contract basis. It appears that he continued to work as…

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: [2020] AATA 929
Decision Date: 21 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the matter between the applicant and Comcare. The dispute concerned whether Comcare remained liable to the applicant for previously accepted conditions, specifically bursitis disorder (right) and adjustment disorder with depression, as at 12 September 2017. The core of the dispute hinged on which party's medical evidence the Tribunal would prefer.

The Tribunal was required to determine whether the applicant continued to suffer from the accepted conditions as at the specified date. This determination was fundamentally a question of fact, dependent on the assessment and preference of conflicting expert medical evidence presented by both the applicant and the respondent.

The Tribunal's reasoning focused on evaluating the expert medical evidence. The applicant's history detailed a fall at work on 12 September 2008, which he claimed resulted in pain and restricted movement in his right shoulder. Subsequent medical treatment led to a diagnosis of bursitis, for which compensation liability was accepted by the respondent. The Tribunal ultimately found that the applicant continued to suffer from the accepted conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination in this application are, broadly, whether the respondent remained liable to the applicant in respect of the previously accepted conditions of bursitis disorder (right) and ‘adjustment disorder with depression’ as at 12 September 2017. Those questions essentially turn on whether the Tribunal prefers the evidence of the applicant’s or respondent’s medical witnesses. EVIDENCE The applicant’s evidence in chief was essentially contained in his signed statement of 6 June 2019.[1][1] Exhibit A8. The applicant’s evidence is that he was born on 18 June 1966 in Mount Gambier. He went to school until year 11 when he took up a traineeship at Coles supermarkets. In about 1989 he started work as a trade assistant for a panel beater and ultimately worked painting cars, commercial vehicles, and equipment. He did this in various roles but was generally self-employed or working on a casual or contract basis. It appears that he continued to work as a spray painter until 2007. He had been operating his own business until 2003 and he did some casual labouring work as well as spray-painting from 2003 to 2007. In January 2008, he started working for the Australian Taxation Office (“ATO”) in a clerical position on contract. This contract continued until 29th of January 2010. When it was not renewed he accepted a further casual contract on 25 February 2010 which ran until 24 February 2011.THE FALL The applicant said in his statement that on 12 September 2008 while he was working at the ATO he rolled his chair backwards on its casters, lost balance, and fell. He says that he fell backwards and landed on his right shoulder and on his neck. He said that he felt pain and restriction of movement, especially with his right shoulder, but that he continued to work. Eventually, because the pain did not improve, he sought treatment from a physiotherapist on 4 November 2008 then later that month from his GP. He was sent for an ultrasound and understood that it revealed bursitis for which he received an injection on 28 November 2008. He understood that it was an injection of cortisone and reported that he enjoyed about 2 weeks’ relief. He continued working despite the return of his pain and in March 2009 he went for further physiotherapy. He had been referred to an orthopaedic surgeon whom he saw in May 2009 and at about the same time, on 5 May 2009, he claimed compensation from the respondent by submitting an online form. He said that he had been reluctant to pursue compensation and that up until then he had tried to meet his own medical expenses and had taken annual leave rather than sick leave to recover from the cortisone injection. He said that he understood the orthopaedic surgeon diagnosed him as having a posterior superior labral tear and sub-acromial bursitis. The applicant said, and it does not appear to be controversial, that on 18 June 2009 the respondent issued a determination accepting liability for “bursitis disorders”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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