Campion and Comcare (Compensation)

Case [2021] AATA 4310

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

Lees v Comcare [1999] FCA 753

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

  1. 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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AGLC
Campion and Comcare (Compensation) [2021] AATA 4310
Case
[2021] AATA 4310
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Campion, against a decision by Comcare regarding compensation for an injury. The dispute centred on whether the applicant continued to suffer the effects of an injury or aggravation to his knee, and whether his employment contributed to his current condition. The case was heard by Deputy J Sosso P.

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

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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

Before turning to the opinions expressed by Drs Allen and Richardson, it is important to consider the MRI that was taken of the Applicant’s right knee on 22 May 2017. Drs te Kloot and Baulch who performed the MRI reached the following conclusions – Exhibit 1 T27 p. 163 – 164:“ConclusionNo new lateral meniscus injury. Extrusion and degeneration of the body segment medial meniscus with a new, small radial tear of the free edge posterior horn.Severe medial and patellofemoral compartment osteoarthritis has not significantly progressed since MRI 26/07/13.Large joint effusion, no loose intra-articular body.The cruciate and collateral ligaments are intact.”(emphasis in the original) In his report of 20 June 2017, Dr Richardson opined that the Applicant suffered “a torsional injury to his right knee at work on the 18th May 2017.” Following this injury the Applicant “developed a significant amount of swelling overnight with difficulty mobilising” – Exhibit 1 T29 p. 167. Dr Richardson referred to the MRI and observed that the “medial compartment demonstrated significant bone bruising involving his medial femoral condyle and anteromedial tibia” – Exhibit 1 T29 p. 167. Reference was also made to a small tear involving the posterior horn of the Applicant’s medial meniscus. It will be noted that Dr Richardson did not provide a diagnosis of the small tear of the posterior horn of the medial meniscus. However, in a report dated 20 March 2019 he opined that the Applicant “sustained a further injury on the 17th May 2017, with a tear involving his medial meniscus” – Exhibit 2 T7 p. 26. Dr Richardson went on to opine that the “further injury that occurred on the 17th May 2017 is similarly contributory to his current symptoms” – Exhibit 2 T7 p. 26. In his most recent report of 14 May 2020, Dr Richardson opined that the injury of 17 May 2017 resulted in “a tear involving his medial meniscus” and that this injury and the knee injury of 2013 both are “contributory to the advance nature of his medial and patellofemoral compartment arthrosis” – Exhibit 21. Dr Allen dealt with the 2017 incident in both of his reports dated 29 October 2018. He opined that the MRI performed on 22 May 2017 “failed to demonstrate any new ligament or meniscal tear” – Exhibit 1 T43 p. 243. Dr Allen again refers to the MRI scan at page 244 but, surprisingly, does not make mention of the radial tear of the posterior horn. Instead Dr Allen opined that the Applicant sustained “an exacerbation of the osteoarthritis of his right knee” but there was “no new meniscal injury” and that the Applicant “simply had a progression of his osteoarthritis in the knee.” Dr Allen also opined that the aggravation of the osteoarthritis of the Applicant’s right knee brought about by the 2017 incident “would ordinarily be expected to settle within six to 12 weeks”. Any ongoing symptoms are “related to his underlying degenerative changes in his right knee” – Exhibit 1 T43 p. 247.

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.