Boggs and Comcare (Compensation)

Case [2019] AATA 221

Boggs and Comcare (Compensation) [2019] AATA 221 (22 February 2019)

Division:GENERAL DIVISION

File Numbers:         2017/3320; 2017/6826 and 2018/2858

Re:Wayne Boggs

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:22 February 2019

Place:Brisbane

The decisions under review (Applications 2017/3320, 2017/6826 and 2018/2858) are affirmed.

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Deputy President J Sosso

CATCHWORDS

WORKERS’ COMPENSATION – Compensation – Commonwealth employees – injury and impairment – disease – ailment – contributed to, “to a significant degree” – liability accepted for initial physical injury – whether initial physical injury has resolved – whether subsequent claim for related physical injury is open to applicant - liability denied for subsequent claimed mental injury – whether a separate injury – decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988

CASES

Aunela and Telstra Corporation Ltd  [2008] AATA 153
Bainbridge and Repatriation Commission [2008] AATA 167
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187
Havnen and Comcare [2010] AATA 535
Howes v Comcare [2016] FCA 1521
Lees v Comcare [1999] FCA 753
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Renouf and Comcare [2004] AATA 525
Telstra Corporation Ltd  v Hannaford (2006) 151 FCR 253
Tippett v Australian Postal Corporation (1998)  27 AAR 40
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110

REASONS FOR DECISION

Deputy President J Sosso

22 February 2019

INTRODUCTION

  1. This matter involves the review of three decisions of Comcare.

  2. The first decision, of 12 April 2017 (2017/3320), affirmed an earlier determination that Mr Wayne John Boggs (the Applicant) was no longer suffering a lumbar sprain sustained on 16 October 2015, and, consequently, was no longer entitled to receive compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

  3. The second decision, of 8 November 2017 (2017/6826), affirmed an earlier Determination denying liability under s 14 of the Act for a thoracic spine injury claimed to have been sustained on 16 October 2015 and for generalised thoracic and lumbar spine injuries sustained due to the nature and conditions of the Applicant’s employment.

  4. The third decision, of 27 April 2018 (2018/2858), affirmed an earlier Determination denying liability to pay compensation under s 14 for a psychological condition sustained consequent upon the back injury.

  5. The Applicant was employed as a gardening/maintenance worker with the Department of Veterans’ Affairs in the Commemorations  and War Graves Branch – Exhibit 1 T4 pp. 8, 

  6. On 16 October 2015, while spraying concrete war memorial graves at the Babinda Cemetery he injured his back.  On 19 October 2015 the Applicant lodged an WHS Incident and Hazard Reporting Form, and described the incident as follows – Exhibit 1 T3 p. 4:

    “while spraying gardiquet onto the concrete graves at the Babinda Cemetery WB went to move the 20 Ltr spray unit from one location to the next.  One of the wheels of the…

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Details
AGLC
Boggs and Comcare (Compensation) [2019] AATA 221
Case
[2019] AATA 221
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant against decisions of Comcare to deny liability for certain compensation claims. The Applicant had accepted liability for an initial physical injury sustained by the Applicant on 16 October 2015. However, Comcare denied liability for subsequent claimed physical and mental injuries, and the Applicant sought to challenge these denials. The case was heard by Deputy J Sosso P.

The central legal issues before the Tribunal were whether the Applicant's subsequent claimed injuries, both physical and mental, were separate injuries for which Comcare was liable to pay compensation, or whether they were a continuation or consequence of the initial compensable injury. The Tribunal was required to determine the extent of Comcare's liability under sections 16 and 19 of the relevant Act, considering the nature of the Applicant's ongoing ailments and the causal connection, if any, to the accepted workplace injury.

The Tribunal considered evidence regarding the Applicant's pre-existing back condition from 1990, a subsequent injury in 2007, and the incident on 16 October 2015. The Applicant claimed ongoing pain in his thoracic and lumbar spine, radiating to his neck and shoulders, and also bouts of depression and anxiety. The Tribunal found the Applicant's evidence regarding his examination by Dr Navin to be unreliable, accepting Dr Navin as a truthful witness. The Tribunal also noted the Applicant's evasiveness concerning a serious assault in 2012. The Tribunal concluded that while the Applicant suffered from ill-health, the issues were not about the nature of his ailments but whether Comcare was liable for compensation under the Act.

The decisions under review were affirmed. The Tribunal noted that the Applicant was unrepresented, which led to deficiencies in the evidence and submissions, suggesting that legal representation might have led to a different outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It may be that consideration will need to be given to requiring parties to advise the Tribunal in advance of an Hearing what summonsed material will be sought to be admitted into evidence so that a presiding Member can view that material before the Hearing and ensure that the problems that have arisen in this matter are avoided in the future.APPLICANT’S EVIDENCE The Applicant gave evidence on 31 October 2018 and was cross-examined by Mr Snell. The Applicant noted in the Applicant’s Response to: Respondent’s statement of Issues, Facts and Contentions (Exhibit 6) that when he completed his pre-employment questionnaire he forgot to disclose that he suffered from a lower back muscle sprain which he received in 1990 whilst working as a delivery driver and which required physiotherapy and rest (Exhibit 6 para 9). It was also noted that the injury healed and the Applicant did not suffer from any further back problems until 2007, when he received a lower back muscle sprain whilst shovelling mulch whilst working for the Department of Veterans’ Affairs. When giving evidence on 31 October 2018, the Applicant referred to the 2007 incident and said that he required two days off work. The Applicant stated that the first time he injured his back was in the 1990s when he was working as a truck driver. The pain he experienced at that time was in the lower back, about eight inches above the belt line coming into the centre of the back. The Applicant informed the Tribunal that he was required to each year to go on a ten week maintenance circuit in North Queensland. Babinda was a one day “job” and the hours of work were 7:20 am until 4:00 pm. After repeating the details of the incident, the Applicant referred to the physiotherapy treatment he received from Mr Dominic Rogers of SportsMed NQ. The Tribunal was also provided with copies of various letters written by Mr Rogers to Dr Pawar in the period November 2015 until June 2016- Exhibit 7. The Applicant was cross-examined at some length by Mr Snell. During cross-examination the Applicant testified that:(a)he was examined by Dr Pawar on the afternoon of the incident;(b)he drove to Dr Pawar’s surgery;(c)Dr Pawar only undertook a “quick” examination of his back;(d)Dr Pawar did not examine -his back with his hands;(e)he did not point out to Dr Pawar where he was feeling pain in his back;(f)Dr Pawar didn’t ask him where exactly in his back he was experiencing pain; (g)despite the cursory nature of the examination, Dr Pawar ordered a CT of the lumbar spine;(h)Dr Pawar “assumed” that the pain was in his lumbar spine;(i)six months later Dr Pawar “apologised” for his “mistaken” assumption after the results of the CT scan explained that the pain was emanating from higher in his back;(j)he had pain all down his spine, and his muscles felt they were on fire;(k)he complained of pains in his neck;(l)since the incident he has been taking Panadeine Forte tablets, Cymbalta (an anti-depressant medication), Nexium and Celebrex (for his gastrointestinal system), Voltaren and he also uses heat packs; and(m)he used anti-depressant medication once before the incident, for three months in the 2008/2009 period to deal with the after effects of a marriage breakup and the death of his father.

Decision

Reasons for decision

Whilst it is a matter for Comcare, it would be hoped that a practical resolution of this aspect of the Applicant’s claim could be reached. As the Applicant was not legally represented there were deficiencies with both the evidence adduced and the submissions that were presented. If the Applicant had been legally represented and those deficiencies had been remedied, a different result may have obtained.DECISION The decisions under review (Applications 2017/3320, 2017/6826 and 2018/2858) are affirmed.

Ratio Decidendi

Legal Principle Established

Section 19 provides that Comcare is liable to pay to an employee who is incapacitated for work as a result of an injury, the compensation is calculated in accordance with the prescribed formulae. Essentially, compensation for incapacity is paid on the basis of normal weekly earnings and is designed to reflect pre-injury earnings, including regular overtime and certain allowances.CONSIDERATIONIntroduction It is not contested that the Applicant suffered a compensable injury whilst working on 16 October 2015. It is also not contested that the Applicant is unwell and suffers from a number of ailments. In his Closing Submissions, the Applicant noted that he still suffers pain in his thoracic and lumbar spine and that pain radiates up to the neck and shoulder regions. The Applicant also explained that sitting for long periods during the two-day Hearing aggravated his lumbar sprain causing his lumbar and thoracic spine to inflame with higher levels of pain – Closing Submissions pp. 3 – 4. The medical evidence before the Tribunal suggests that the Applicant suffers from back pain and has, over time, been afflicted by bouts of depression and anxiety. The issues to be determined by the Tribunal, however, are not evaluating the nature and degree of the Applicant’s ill-health per se, but whether Comcare is liable to pay compensation under ss 16 or 19 of the Act. It is necessary to place on the record that the Tribunal did not accept the Applicant’s claim that he had been mistreated by Dr Navin. Not surprisingly, the Applicant tried to construct his evidence in a way that would support his claims, however any person who was not supportive of his compensation claims, was subjected to criticism. For example, in the Applicant’s Statement of Truth which is dated 29 May 2018 (Exhibit 5) the Applicant described the Functional Capacity Assessment Report as a “sham” and said:“Who in their depressed state of mind would go and lift heavy weights and do things to a point that is going to aggravate more their already severe chronic back pain?” In his Closing Submissions, the Applicant said of Dr Navin (pp. 4 – 5):“Dr Navin identified on the 01/11/2018 while giving evidence that if he was to verbally and physically abuse a patient before and during a examination that the examination would not be true and accurate. I put it to Dr Navin that this is exactly what he had done. This would suggest Dr Navins’ IME report on that day was false and misleading and a complete misrepresentation of the medical profession.” The Tribunal found Dr Navin to be a truthful witness and as he appeared in person the Tribunal was able to observe him. He is an elderly and somewhat frail gentleman, softly spoken and the Tribunal does not accept the Applicant’s version of what transpired during his examination by Dr Navin. The Applicant was also not forthcoming about the serious assault perpetrated on him on 21 December 2012, and his responses to questions posed by Mr Snell could best be described as evasive.