Campion and Comcare (Compensation) [2021] AATA 4310 (19 November 2021)
Division:GENERAL DIVISION
File Number(s): 2019/2758, 2019/2759, 2020/3361, 2020/7585
Re:Michael Campion
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:19 November 2021
Place:Brisbane
The Tribunal determines that:
(a)the reviewable decision of 26 April 2019 (2019/2758) is affirmed;
(b)the reviewable decision of 26 April 2019 (2019/2759) is affirmed;
(c)the reviewable decision of 29 May 2020 (2020/3361) is set aside insofar as liability pursuant to s 14 is accepted, and in lieu a decision rejecting liability is substituted, and affirmed insofar as liability pursuant to s 14 is rejected; and
(d)the reviewable decision of 2 September 2020 (2020/7585) is affirmed.
..............................[SGD]........................
Deputy President J Sosso
Catchwords
COMPENSATION – whether applicant continues to suffer effects of injury or aggravation – whether employment contributed or continues to contribute to ailment – whether respondent liable to pay compensation – Aggravation of osteoarthritis – knee – ankle or foot – small tear of the posterior horn of the medial meniscus – aggravation of injury – rupture of Baker’s cyst – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Cases
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Canute v Comcare (2006) 226 CLR 535
Comcare v Power (2015) 238 FCR 187
Comcare v Reardon [2015] FCA 1166 148; ALD 356
Comcare v Sahu-Khan [2007] FCA 15; 156 FCR 536
Comcare v Stefaniak [2020] FCA 560
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 53 FLR 191
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Howes v Comcare [2016] FCA 1521
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641; 156 ALD 584
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Prain v Comcare (2017) 256 FCR 65
Renouf and Comcare [2004] AATA 525
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Woodhouse v Comcare [2021] FCAFC 95
REASONS FOR DECISION
Deputy President J Sosso
19 November 2021
INTRODUCTION
Mr Michael Campion (the Applicant) seeks review of the following determinations of Comcare in relation to claims made under the Safety, Rehabilitation and Compensation Act 1988 (the Act):
(a)the initial reviewable decision of Comcare was a reconsideration of two previous determinations of 12 February 2019 and was made on 26 April 2019. The Review Officer affirmed the two previous determinations – Exhibit 1 T72 pp. 324 – 328. The two earlier determinations are referred to below
(b)2019/2758 relates to a determination by Comcare on 12 February 2019 that there was no present liability for medical expenses under s 16 in relation to the Applicant’s accepted conditions of “aggravation of…
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CaseChat Overview and Summary
The primary legal issues before the Tribunal were to determine whether the applicant's employment contributed to, or continued to contribute to, his ailment, and consequently, whether Comcare was liable to pay compensation. This involved assessing the medical evidence presented by both the applicant, primarily through the reports of Dr Richardson, and the respondent, through the reports of Dr Allen, to ascertain the nature and extent of the applicant's knee injury and its ongoing impact.
The Tribunal considered the MRI results of the applicant's right knee, which indicated no new lateral meniscus injury but a small radial tear of the posterior horn of the medial meniscus, along with severe osteoarthritis that had not significantly progressed. Dr Richardson opined that the applicant suffered a torsional injury at work on 18 May 2017, leading to swelling and difficulty mobilising, and that this injury, along with a previous knee injury in 2013, contributed to the advanced nature of his arthrosis. In contrast, Dr Allen concluded from the same MRI that there was no new ligament or meniscal tear, but rather an exacerbation of osteoarthritis that should have settled within six to twelve weeks, with ongoing symptoms attributed to underlying degenerative changes. The Tribunal noted the applicant's submissions challenging the admissibility and reliability of Dr Allen's reports, including allegations of insufficient information and a dismissive attitude. However, the decision ultimately favoured the interpretation of the medical evidence that aligned with the applicant's claim of ongoing injury and contribution from employment.
Orders
Orders of the court
Full text does not contain this section.
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
Section 19 provides that Comcare is liable to pay compensation calculated in accordance with the prescribed formulae to an employee who is incapacitated for work as a result of an injury. 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.CONSIDERATION Although there are a number of issues for determination by the Tribunal with respect to the Applications before it, of considerable importance is the fact that the Applicant substantially relies on the reports of Dr Richardson, whilst Comcare relies on the reports of Dr Allen. To the extent that there is a difference of opinion between these gentlemen, the Tribunal will explain below why it prefers one opinion over another. At the outset it is desirable to deal with the submissions of the Applicant with respect to the reports and evidence of Dr Allen. The Tribunal has before it five reports prepared by Dr Allen, namely:(a)Report of 29 October 2018 – Exhibit 1 T43 pp. 241 – 249;(b)Report of 29 October 2018 – Exhibit 1 T44 pp. 250 – 256;(c)Report of 22 November 2018 – Exhibit 1 T53 pp. 269 – 270;(d)Report of 9 December 2019 – Exhibit 8; and(e)Report of 11 February 2021 – Exhibit 10. The Applicant made the following submissions regarding Dr Allen’s reports – Exhibit 11 para 2.1(i):“The Applicant will examine and prove each of the reports provided by Dr Allen were inadmissible as medical evidence for the following reasons:·Dr Allen was not provided enough information to make an informed medical opinion.·The Applicant offered Dr Allen important documents at their meeting as advised by Comcare which Dr Allen refused to review.·At the medical meeting Dr Allen was very rude, very short and dismissive of everything the applicant had to offer in way of evidence.·Dr Allen’s reviews on his web page confirms he treats all patients with an air of superiority and arrogance.·The reports produced were basically plagiarised documents with little effort to provide real evidence.·Some reports did not meet the Guidelines required for Expert Witnesses and cannot be accepted as evidence.·Other reports listed documents that should be read in conjunction with the report however the document listed do not even exist.·Medical opinions that contradict several orthopaedic surgeons and imaging experts.” Possibly the most serious submission made by the Applicant with respect to Dr Allen is his contention that Comcare failed to provide Dr Allen with enough information to make an informed medical opinion. This submission was supplemented in the Applicant’s Outline of Closing Submissions (AOCS). The Applicant contends, inter alia, that Dr Allen’s reports are deficient in that he was not provided copies of Dr Richardson’s reports. In particular, reference is made to the briefing material provided to Dr Allen by Comcare on 27 November 2019 which is contained in Exhibit 7.