Budarick and Comcare (Compensation) - [2019] AATA 116

Budarick and Comcare (Compensation) [2019] AATA 116 (8 February 2019)
Division:GENERAL DIVISION
File Number(s): 2017/5818
Re:Steven Budarick
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal: Member Mark Hyman
Date:8 February 2019
Place:Canberra

The application for dismissal is denied.
........................................................................
Member Mark Hyman
Catchwords
PRACTICE AND PROCEDURE – compensation - application to dismiss – where review application is alleged to be misconceived or to have no reasonable prospects of success – relevant principles – medical evidence – existence of two case theories, each of which has evidentiary support – applicant’s case is not fanciful – application to dismiss denied
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 42A, 42B
Federal Court of Australia Act 1976, s 31A
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 20, 21, 21A, 22, 71
Social Security Act 1994, s 94
Cases
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60
Oliver and Comcare [2018] AATA 1964
Spencer v Commonwealth of Australia [2010] HCA 28
Secondary Materials
REASONS FOR DECISION
Member Mark Hyman
8 February 2019

This decision is about whether the application for review made by the applicant, Mr Steven Budarick, should be dismissed. Mr Budarick made a claim for workers’ compensation on 29 October 1997 in respect of a back condition which he said was brought about by events occurring on 1 October 1997. Comcare denied liability for “acute thoracic back strain” under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) and affirmed that decision in a reconsideration determination dated 22 June 1998. Mr Budarick applied to this tribunal for review of that determination; in a decision dated 8 August 2000 the tribunal set aside the reviewable decision and substituted a decision that Comcare was liable to pay compensation in respect of a chronic pain disorder.
Comcare decided in 2004 that it was not presently liable for medical treatment of Mr Budarick under section 16 of the SRC Act and affirmed that decision in a reconsideration determination dated 26 April 2005. Mr Budarick again applied for review, and by a consent decision dated 24 November 2005 Comcare accepted liability for incapacity and medical treatment (under sections 19 and 16 of the SRC Act) in respect of a chronic pain disorder occasioned by events occurring on 1 October 1997.
Comcare by a determination dated 4 August 2017 decided that it had no present liability under sections 16 and 19 of the SRC Act, and affirmed that decision in a reconsideration determination dated 16 August 2017. Mr Budarick has applied to the tribunal for review of that decision; Comcare now proposes that the application should be dismissed, which would bring Mr Budarick’s review to an end before it was heard.
The tribunal held a dismissal hearing on 1 February 2019. Mr Budarick appeared in person, representing himself. Comcare was represented by Ms Kristy Katavic of Counsel, instructed by Ms Elizabeth West of Comcare. No oral evidence was led, but Ms Katavic made substantial submissions, both in writing and orally at the hearing, in support of dismissal. The tribunal also had available documentation tendered at the hearing (a tender bundle identified as Exhibit R1), a separate sheet documenting a reconsideration of own motion by Comcare in 1995 (Exhibit R2), documents provided by Comcare (the “T-documents”) under section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) and documents provided by Comcare under section 71 of the SRC Act. Additional documents provided by Comcare, which would normally have been tendered at the substantive hearing of the matter, were also referred to and where necessary those have been assigned exhibit numbers for convenience in the reasons that follow.
ISSUE
The only issue before the tribunal is whether Mr Budarick’s application for review should be dismissed.
Comcare has put forward as grounds for dismissal either that the application has no reasonable prospect of success (paragraph 42B(1)(b) of the AAT Act) or that it is misconceived (paragraph 42B(1)(a)).
BACKGROUND
There is a long and complex medical history relating to the 1997 injury. The initial claim was for an “acute thoracic back strain” (or possibly “sprain” - T11, folio 16), but the tribunal decision assigning liability to Comcare was in respect of a “chronic pain disorder” (T40, folio 140). Despite that change in diagnosis, Comcare continued to refer to the accepted condition as “thoracic sprain” (see for example T52, T60, T92, T104). Eventually the doctor with whom Mr Budarick appears to have the closest connection, Dr Robert Reid, a sport and exercise medicine specialist, suggested to Comcare that the accepted condition be recharacterised as “chronic lumbar and spinal pain syndrome” (T190). Comcare acknowledged the sense of this but wished to find terms that aligned with their diagnostic code (T197) and settled on “pain in the thoracic spine” and, as a secondary condition, “myalgia and myositis, unspecified” (T198, T199).
Mr Budarick made a number of other claims, for example for a special bed, and for a long-armed tool for collecting rubbish from the ground; these were denied (T114, T116, T119, T129, T136, T137, T138). Mr Budarick continued to receive various forms of treatment, including massage, acupuncture and medication. Comcare continued to pay for medical treatment up to the determination of 4 August 2017 that Comcare had no present liability for section 16 medical expenses and section 19 incapacity payments (T263). Over the two decades between the injury and the reviewable decision of 2017 a significant number of medical reports were obtained from specialists in different sub-disciplines.
APPLICABLE LAW
The legislation governing this matter is the SRC Act, which provides for compensation to be paid in respect of injuries occasioned by employment, and the AAT Act, which governs the operations of the tribunal and the exercise of its powers.
Section 5A of the SRC Act defines an injury for the purposes of the Act. An injury is either a disease or an injury other than a disease, or an aggravation of such an injury, arising out of or in the course of employment. Section 5B, which applies to diseases, then reads (so far as is relevant for present purposes) as follows:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(3) In this Act:
significant degree means a degree that is substantially more than material.

Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 14 of the SRC Act is the gateway provision for compensation. It provides that liability to pay compensation arises in respect of an injury suffered by an employee if it results in death, incapacity for work or impairment (subject to exclusions not presently relevant). Section 16 of the SRC Act provides for compensation to be paid for medical treatment. and incapacity. Subsection 16(1) provides as follows:
Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
The word “injury” in sections 14 and 16 is used to mean an injury for which the necessary connection with employment has been demonstrated under sections 5A and 5B; that is, “injury” means an injury of the kind that makes it compensable under the SRC Act.
Subsection 4(1) contains a definition of “medical treatment”. It includes (relevantly) medical or surgical treatment by or under the supervision of, a legally qualified medical practitioner (paragraph (a)); or therapeutic treatment obtained at the direction of a legally qualified medical practitioner (paragraph (b)). Section 4(1) also defines “therapeutic treatment” to include treatment given for the purpose of alleviating an injury.
Sections 19, 20, 21, 21A and 22 provide for the calculation of a person’s compensation where the person is incapacitated for work. The calculation varies with the person’s earnings, their earning capacity, whether they are in receipt of superannuation or a lump sum, and other factors.
The AAT Act establishes a number of grounds under which an application for review may be dismissed without proceeding to a hearing. Section 42A, for example, allows an application to be dismissed if there is no reviewable decision (subsection 42A(4)) or if the applicant fails to appear at a hearing (subsection 42A(2)), or if the applicant fails within a reasonable time to proceed with the application or to comply with a direction by the tribunal.(subsection 42A(5)). Section 42B, so far as is relevant, reads as follows:
(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) has no reasonable prospect of success; or
(c) is otherwise an abuse of the process of the Tribunal.
Section 42B of the AAT Act was amended by the Tribunal Amendment Act 2015. The Act previously allowed the kind of dismissal established by the section - the equivalent of summary judgment in the courts – only where an action was frivolous or vexatious. The amended section allows dismissal for a wider range of reasons, and brings the provision into alignment with similar provisions elsewhere, for example in Federal Court Rules.
The operation of section 42B was explored in Oliver and Comcare [2018] AATA 1964 (Oliver), where Deputy President (DP) Humphries referred in some detail to Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60. In the latter case the members of the Full Court each formulated the test contemplated by the Federal Court’s equivalent of section 42B from the AAT Act in ways that differ slightly one from another, but nevertheless are quite closely aligned. Their Honours observed that critical issues included “… whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial” (Finkelstein J, at [23]); “…if Jefferson Ford is able to establish that there was a real issue of fact and law capable of being decided in its favour” (Rares J, at [74]); and “… the court must draw all reasonable inferences – but only reasonable inferences – in favour of the non-moving party …” (Gordon J, at [132]).
In Oliver, Comcare submitted that the applicable test was “does the applicant have evidence of sufficient quality and weight to succeed at trial such that a real issue of fact or law must be determined?” (at [45]). Ms Katavic in the present matter submitted that that is the test I should apply in deciding whether to dismiss Mr Budarick’s application.
I note however that in Oliver DP Humphries also quoted extensively from the High Court’s decision in Spencer v Commonwealth of Australia [2010] HCA 28 (Spencer). In that case the majority (Hayne, Crennan, Kiefel and Bell JJ) considered the application of section 31A of the Federal Court of Australia Act 1976 (the equivalent to section 42B in the AAT Act). The language of the section is not identical to that of section 42B of the AAT Act, but is very similar. The majority in Spencer noted that:
·the basis for summary judgment had shifted, with the central concept of the provision now being that there was “no reasonable prospect” of a party’s success in the proceedings;
·this was a different test from that underpinning existing jurisprudence in cases such as Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and those earlier cases were no longer a reliable guide to how the test should be applied;
·the phrase “no reasonable prospect” is not amenable to judicial paraphrasing, and each case must be carefully assessed on its merits rather than decided on the basis of some alternative formulation or judicial gloss.
In the same case French CJ and Gummow J noted that despite the change, action with the effect of preventing a party agitating a case before the court should be undertaken with caution, and that where facts are in dispute “summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue”.
In the present matter the facts on which the matter turns are essentially medical – the nature of Mr Budarick’s condition, when and how it arose, its current manifestation, and the existence or otherwise of a nexus with Mr Budarick’s former employment.
COMCARE’S SUBMISSIONS
The essence of Comcare’s submissions is that:
(a)Comcare has no liability for any injury occurring in 1991, any liability having come to an end in 1994, and the tribunal has no jurisdiction in respect of any injury other than the accepted injury, which dates from 1997;
(b)Mr Budarick’s treating doctors, in recent medical certificates and other documentation, attribute his injury to events in 1991;
(c)such opinions cannot be a basis for Comcare’s continuing liability for incapacity and medical expenses arising from the 1997 injury;
(d)even if the 1997 injury is understood as arising from the 1991 events the application must fail because:
(i)the evidence is that it was not significantly contributed to by the workplace or alternatively that any workplace contribution has now been overtaken by other factors;
(ii)in any case any current incapacity does not derive from the injury; and
(iii)Mr Budarick does not need medical treatment, or alternatively is untreatable, or alternatively it is not reasonable for him to obtain the treatment.
CONSIDERATION
Comcare is correct in asserting that the injury that Mr Budarick sustained in 1991 is not before me, in the sense that any claims against that injury have already been resolved and finalised, and cannot be agitated in the present matter, which relates to an acceptance of liability dating from 1997. The facts of that earlier claim are apparent from papers that Comcare provided in the tender bundle at the dismissal hearing (Exhibit R1). As noted above, Mr Budarick made a claim in 1991; Comcare accepted liability but on 16 July 1993 determined that liability had ceased. That decision was affirmed in a reconsideration determination dated 28 October 1993. Mr Budarick sought review by this tribunal, which affirmed the reconsideration determination on 14 February 1994. (That history is apparent from the tribunal’s decision, Budarick and Comcare [1994] AATA 85.) Subsequently, in 1995, Comcare made an own motion reconsideration of the determination of 16 July 1993, as documented in a record tendered by Comcare at the hearing (Exhibit R2), prompted by further claims made by Mr Budarick for injuries that he said he sustained on 2 and 25 August 1994. The delegate affirmed the 1993 decision. These events establish clearly that Comcare has no current liability in respect of the 1991 injury and no claim in relation to that injury is within the scope of the current review.
In the extensive papers prepared for the substantive hearing of the matter it is abundantly evident that there are two case theories implicit in the medical reports.
The case theory that is apparent, explicitly or implicitly, in the reports of Mr F Keiller, a surgeon, (T33), Dr W Glaser, a psychiatrist (T35, T39), Dr P Stevenson, a consultant physician (T140), Dr N McGill, a rheumatologist (T166, T167, T169) and Dr T Kostos, a rheumatologist (T256 and Exhibit R3, from among pre-hearing documents) can be summarised as follows:
·Mr Budarick has nothing physically wrong with him;
·any and every injury in the past was a short-lived soft tissue injury that would have resolved quickly;
·any pain he now experiences is essentially psychological;
·his condition is a manifestation of illness behaviour; and
·his condition is not caused by or derived from his employment.
The alternative case theory, apparent, explicitly or implicitly, in the reports of Dr G Danta, a neurologist (T3), Mr O White, a neurologist (T36), Dr W Lucas, a psychiatrist (T37), Mr I Brown, an orthopaedic surgeon (T99, T109), Dr W Knox, a psychiatrist (T134, T146, T156, T165, T171), and Dr Reid (T20, T62, T96, T121, T143, T151, T163, T178, T190, T223) can be summarised as follows:
·Mr Budarick has no continuing physical ailment but he did suffer injuries to his back in earlier years (1988, 1991, 1994, 1997);
·these injuries prompted or caused the development of a chronic pain syndrome;
·there are psychological elements at work in his chronic pain (although the doctors are not in agreement on the nature of those factors); and
·the origin of his condition is in the back injuries he sustained at work and therefore his chronic pain syndrome was contributed to by employment to a significant degree.
Not every one of the medical reports clearly falls into one or other of these theories. The report of Dr J Saboisky, a psychiatrist, for example (T170), postulates a different causation related to a schizoid personality disorder. But the two lines of medical thinking are reasonably discernible through the bulk of the T-documents. One important qualification, however, is that of the reports identified above, only the most recent report of Dr Reid and those of Dr Kostos could be regarded as current. Most of the reports date from 2005 or earlier.
Comcare would have me dismiss the application on the basis that much of Dr Reid’s evidence, including a significant number of medical certificates, and some documentation obtained under summons, refers to 1991 as the date of injury. Indeed Dr Reid frequently refers to the injury arising in 1991, especially on medical certificates provided in regard to Mr Budarick’s social security benefits (I gather that Mr Budarick receives disability support pension (DSP)). Dr Reid also occasionally refers to 1997 as the date of injury, notably on Comcare-related documentation. Ms Katavic went so far as to suggest that Dr Reid is manipulating the documentation he submits to suit the recipient organisation. But the second case theory outlined above might readily explain why Dr Reid could do this: even if Comcare accepted liability in 1997 for a primary condition said to have arisen at that time, Dr Reid could well take the view, medically, that the ultimate origin of the condition was incidents that occurred at an earlier time (and I note that qualification for DSP is not dependent on the date of origin of a disability, but rather on its permanence and severity at the time of application, and so the 1991 date would not have had significance for Centrelink – see section 94 of the Social Security Act 1991).
When at the hearing I pointed out that the date on medical certificates signed by Dr Reid might be explained in the above manner, Ms Katavic suggested that, in any case, I should prefer Dr Kostos’s evidence to that of Dr Reid, as Dr Kostos is a specialist in a relevant sub-discipline. But Dr Reid is also a specialist, and I am not persuaded that his specialism (sports and exercise medicine) is irrelevant. What is more, he has not provided a detailed medical report, but rather a succession of brief reports over an extended period. I might therefore benefit from hearing his evidence in more detail at a substantive hearing. He is a treating doctor, but he has the experience of having treated Mr Budarick for more than 20 years. Finally, I may indeed find that ultimately I prefer the evidence of Dr Kostos; but the time to determine whose evidence is to be preferred is when the competing evidence has been subject to cross-examination. In present circumstances, when competing theories remain to be distinguished on the facts, dismissal would seem premature, taking into account the comments of French CJ and Gummow J from Spencer quoted above.

This matter can be distinguished from Oliver. In that case the applicant’s medical evidence was complete and the tribunal was in a position to gain a clear perspective of the evidentiary basis for the case; that is not so here, since Dr Reid’s evidence is limited in scope and apparently incomplete. And in Oliver DP Humphries arrived at the conclusion that the case of the applicant was very unlikely to succeed; in the present matter, on the documentation available, I have not arrived at the equivalent conclusion.
Comcare’s other arguments, relating to whether any workplace causation has been overtaken by other factors, and whether Mr Budarick’s condition is amenable to medical treatment, are all substantial, but the evidence does not suggest that the requirements of section 42B are met. These are the sorts of issues best tested at a hearing. No competing causes for Mr Budarick’s condition are obvious from the documentary material. Dr Reid has proposed a number of different treatment modalities over the years, none of which seems to have been successful and his evidence about what treatments might now be available, and their prospects of success, will be vital. Dr Kostos suggests that no treatment at all is indicated, but that assertion alone is not enough for me to decide that the issue is not worth testing.
I have therefore arrived at the conclusion that Mr Budarick has an arguable case to put at hearing. But I have limited confidence that he will be able to put that case in a coherent and persuasive manner. Mr Budarick was unable to put contentions to me at the dismissal hearing, saying (if I understood him correctly) that the matter was too abstract for him to grapple with. But the question of whether to dismiss the application is predicated on the existence of a real prospect of success, based on the available evidence. An applicant’s probable skill in being able to present that case is not something I can take into account; apart from any other consideration, drawing an inference on that issue would involve speculation regarding any decision by Mr Budarick to seek assistance in order to present his case more effectively.
Comcare put forward two bases for dismissal – that the application was misconceived and that it has no reasonable prospects of success. There is no explicit argument in Comcare’s submission directed to the case being misconceived, and I understand the force of the implicit argument to be that to the extent that the medical evidence is focused on a 1991 injury the case is misconceived because the tribunal has no jurisdiction in respect of that injury. For the reasons explained above, I do not believe that the medical evidence relating to a 1991 injury will be necessarily irrelevant to determining continuing liability for the 1997 accepted condition. And if there is a real rather than fanciful prospect of success the conclusion that the application is misconceived falls away in any case.
Given the two case theories, it seems to me that there is an issue to be decided on the evidence that is to come forward at a hearing; and that the prospect of Mr Budarick’s implicit case theory being accepted is not fanciful, given the number of doctors that have supported it in the past and the advocacy for it of Dr Reid over a long period.
Comcare’s application for dismissal is denied.
I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
……………………………………………………
Associate
Dated: 8 February 2019
Date of Hearing: 1 February 2019
Applicant: In Person
Counsel for the Respondent: Ms Kristy Katavic
Solicitor for the Respondent: Ms Elizabeth West, Comcare Legal