Carvalho and Comcare (Compensation)

[2022] AATA 1081

Carvalho and Comcare (Compensation) [2022] AATA 1081 (20 April 2022)

Division:GENERAL DIVISION

File Number(s):     2019/6562          

Re:Lorraine Carvalho

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:20 April 2022

Date of written reasons:      9 May 2022

Place:Canberra

The Tribunal dismisses the application for review pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

..........................[sgd]..................................

Member W Frost

Catchwords
PRACTICE AND PROCEDURE – s42B of the Administrative Appeals Tribunal Act 1975 – dismissal of proceedings if there are no reasonable prospects of success – Tribunal not satisfied that the Applicant has evidence of sufficient quality and weight to succeed – Application dismissed

Legislation
Administrative Appeals Tribunal Act 1975, ss 2A, 42B
Compensation (Commonwealth Government Employees) Act 1971
Safety, Rehabilitation and Compensation Act 1988, ss 16, 24, 27, 29

Cases

Comcare v Wuth [2018] FCAFC 13
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60
Novosel v Comcare [2017] FCA 722
Oliver v Comcare (Compensation) [2018] AATA 1964

REASONS FOR DECISION

Member W Frost

9 May 2022

INTRODUCTION

1. This decision relates to the dismissal by the Administrative Appeals Tribunal (Tribunal) of the application brought by the Applicant, Ms Lorraine Carvalho, because the Tribunal was satisfied that the application had no reasonable prospect of success pursuant to subsection 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  

2. Ms Carvalho applied to the Tribunal for review of a decision by the Respondent, Comcare, affirming its determination denying liability to pay her compensation for medical treatment and household services under sections 16 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to a condition described as ‘cervicobrachial syndrome (diffuse)’. This compensation consisted of household services in the form of two hours of ironing assistance each week and a rehabilitation gym program.

3. On the morning of the first of three scheduled days of the substantive Tribunal hearing of Ms Carvalho’s application, following a discussion regarding the nature and scope of the substantive application before the Tribunal and the evidence to be called at the hearing, Comcare made submissions that it was open to the Tribunal to dismiss the application pursuant to subsection 42B(1)(b) of the AAT Act because Ms Carvalho’s application had no reasonable prospect of success. The Tribunal heard and considered submissions from both parties regarding Comcare’s dismissal application and also considered the documentary evidence filed in the proceeding.

4. The Tribunal was satisfied, based on its consideration of the documents taken into evidence in this proceeding and the submissions made by the parties, that Ms Carvalho’s application for review of Comcare’s decision had no reasonable prospect of success and should be dismissed pursuant to subsection 42B(1)(b) of the AAT Act. Accordingly, the application was dismissed without the Tribunal proceeding to review Comcare’s decision, the subject of Ms Carvalho’s application to the Tribunal. The Tribunal delivered an oral statement of its reasons at the hearing on 20 April 2022. On 26 April 2022, both parties separately requested a statement of the Tribunal’s written reasons. These are those written reasons for the dismissal of Ms Carvalho’s application.

   LEGISLATION

5. Section 2A of the AAT Act provides as follows:

   In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

   (a)  is accessible; and

   (b)  is fair, just, economical, informal and quick; and

   (c)  is proportionate to the importance and complexity of the matter; and

   (d)  promotes public trust and confidence in the decision-making of the Tribunal.

6. Subsection 42B(1) of the AAT Act provides the Tribunal with the power to 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.

   ISSUES

7. The issues for the Tribunal to decide in this proceeding in relation to Ms Carvalho’s application were:

   (a)did Ms Carvalho suffer an injury for the purpose of the SRC Act?;

   (b)if so, did she continue to suffer such an injury as of 16 October 2007, being the date of Comcare’s determination that it had no liability to pay compensation under the SRC Act?;

   (c)if so, did Ms Carvalho, as of 16 October 2007:

   (i)reasonably in the circumstances obtain a gym program as medical treatment in relation to ‘cervicobrachial syndrome (diffuse)’ under section 16 of the SRC Act?; and

   (ii)obtain household services that she reasonably required as a result of ‘cervicobrachial syndrome (diffuse)’ under section 29 of the SRC Act?

8. Following Comcare’s application for the Tribunal to dismiss Ms Carvalho’s substantive application, the issue for the Tribunal to decide was whether it was satisfied that Ms Carvalho’s application had no reasonable prospect of success pursuant to section 42B of the AAT Act.

   BACKGROUND

9. Ms Carvalho is 65 years old and her employment with the Commonwealth ended in 2005.[1]

   [1] Exhibit R1, T1.1, pages 6 and 8.

10. In 1972, Ms Carvalho fractured her right clavicle while participating in non-work related martial arts.[2]

    [2] Exhibit R1, T28, page 88; and Exhibit R2, ST9, page 15.

11. In 1984, Ms Carvalho claimed, she sustained a work-related injury, in the form of a bone separation in her right collarbone, as a result of a fall at the Australian Bureau of Statistics (ABS). Despite voluminous documentation produced by Comcare and by way of summons in this proceeding, there was no contemporaneous documentary evidence before the Tribunal regarding this particular alleged incident or related claim for compensation.[3]

    [3] See, by way of comparison, Exhibit R3, ST26-ST29, pages 469-472, regarding Ms Carvalho’s report of a claimed workplace shoulder injury from typing suffered in November 1984.

12. From 1985, Ms Carvalho was employed with the Australian Federal Police (AFP) in an administrative role.

13. During various periods from the 1980s and up until 2007, Ms Carvalho has received workers’ compensation from the Commonwealth.

14. In 1986, Comcare’s predecessor accepted liability to pay compensation to Ms Carvalho under the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act) for an ‘aggravation of a non-united fracture of the right clavicle’ with a date of injury of 29 August 1985.[4]

    [4] Exhibit R2, ST8, page 14.

15. In 1989, Comcare’s predecessor accepted liability under the 1971 Act for Ms Carvalho’s ‘carpal tunnel syndrome’, ‘carpal tunnel syndrome with release operation’ and ‘cervicalgia’, with the date of injury deemed to be 24 July 1987.[5]

    [5] Exhibit R1, T12, pages 28-29.

16. In March 1998, Comcare decided, among other things, that an exercise program was not reasonably required for Ms Carvalho’s bilateral carpal tunnel syndrome and liability was denied.[6]

    [6] Exhibit R1, T14, page 37.

17. In December 1998, Comcare determined that it was no longer liable to pay compensation for household assistance and physical therapies.[7] It also determined that the effects of Ms Carvalho’s bilateral carpal tunnel syndrome had resolved and that Comcare was therefore not liable to pay further compensation in respect of that condition.

    [7] Exhibit R1, T15, pages 39-40.

18. In March 2000, the Tribunal (differently constituted) decided by consent that whilst the effects of the episode of bilateral carpal tunnel syndrome suffered by Ms Carvalho had resolved, she was entitled to compensation under the SRC Act for ‘neuropathic cervicobrachial pain syndrome’.[8] The deemed date of injury remained 24 July 1987. The Tribunal further decided that Ms Carvalho was entitled to a payment pursuant to sections 24 and 27 of the SRC Act for permanent impairment and non-economic loss in respect of ‘neuropathic cervicobrachial pain syndrome’. It was also decided that Ms Carvalho was entitled to two hours per week of household help pursuant to section 29 of the SRC Act.

    [8] Exhibit R1, T18, pages 55-56.

19. In 2005, Ms Carvalho was made redundant from her employment with the Commonwealth.

20. In 2006 and 2007, Comcare accepted liability to pay compensation to Ms Carvalho for a 6 month gym or exercise program and related membership until 31 August 2007, in respect of her ‘cervicobrachial syndrome (diffuse)’, under section 16 of the SRC Act.[9]

    [9] Exhibit R1, T22, page 62; T26, page 85; T27, page 86.

21. In 2007, Comcare accepted liability to pay compensation to Ms Carvalho in respect of this condition for two hours of ironing per week in the period up to and including 31 August 2007, under section 29 of the SRC Act.[10]

    [10] Exhibit R1, T25, page 84.

22. On 17 August 2007, Comcare advised Ms Carvalho that current medical evidence indicated that she did not presently suffer from the effects of her compensable injury and therefore may not have a present entitlement to compensation for a gym program or household services in respect of ‘cervicobrachial syndrome (diffuse)’.[11] Ms Carvalho presented further medical evidence from her general practitioner to support her claim.[12]

    [11] Exhibit R1, T29, pages 95-99.

    [12] Exhibit R1, T30, page 100.

23. On 17 October 2007, Comcare determined that as of 16 October 2007 there was no liability to pay compensation to Ms Carvalho for a gym program or household services under sections 16 and 29 of the SRC Act, because they did not relate to her ‘cervicobrachial syndrome (diffuse)’.[13]

    [13] Exhibit R1, T31, pages 101-102.

24. In June 2019, the Tribunal (differently constituted), affirmed a decision of Comcare refusing Ms Carvalho’s 2018 request for it to reconsider the 2007 determination denying liability to pay compensation for a gym program or household services under the SRC Act.[14] However, the Tribunal decided that Comcare had before it a request for reconsideration of the 2007 determination, made by Ms Carvalho in March 2008, that had not yet been acted upon and remitted the matter to Comcare for reconsideration.

    [14] Exhibit R1, T35, Pages 131-151.

25. On 1 August 2019, following reconsideration of its 2007 determination, Comcare affirmed its decision that it was no longer liable to pay compensation to Ms Carvalho under the SRC Act.[15] 

    [15] Exhibit R1, T1.2, page 7-12.

26. In October 2019, Ms Carvalho applied to the Tribunal for review of the decision.[16]

    [16] Exhibit R1, T1, pages 1-5; T37, page 158.

    CONSIDERATION

27. Based on all the evidence, the Tribunal is satisfied that Ms Carvalho’s application has no reasonable prospect of success. The Tribunal’s power under the AAT Act to dismiss Ms Carvalho’s application is therefore enlivened and it is satisfied that dismissal is warranted in this proceeding.

28. A thorough examination of the applicable law regarding the Tribunal’s dismissal power pursuant to subsection 42B of the AAT Act was undertaken by the Tribunal in Oliver v Comcare (Compensation) [2018] AATA 1964 (Oliver).[17] This Tribunal adopts that comprehensive analysis. In extracting the various principles from the judgments in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others [2008] FCAFC 60,[18] the Tribunal in Oliver stated, at [67], that it must conduct an assessment of the evidence using a critical eye in order to determine whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial, with a view to determining whether there is a real issue of fact or a real issue of law capable of being decided in that party’s favour. In doing so, the Tribunal must draw all reasonable inferences, but only reasonable inferences, in favour of that party. Most importantly for this proceeding, in conducting this enquiry, the Tribunal must give particular weight to the expert medical evidence as it stands at the time it considers the exercise of the power under section 42B of the AAT Act.[19]

    [17] See paragraphs 39 to 52

    [18] See paragraphs [23], [74], [124] and [132].

    [19] Oliver at [67], citing Comcare v Wuth [2018] FCAFC 13.

29. As in Oliver, when assessing the facts of Ms Carvalho’s case before the Tribunal, the evidence underpinning her claim is weak. There is little or no objective evidence to counter the expert medical opinion proffered in detail by the Occupational Physician, Doctor Virginia Pascall and the Rheumatologist, Dr Phillip Vecchio, who were both to be called to give evidence in this proceeding, that Ms Carvalho’s medical conditions were unrelated to her employment with the Commonwealth.[20] These opinions were supported by that of the Consultant Physician, Dr Peter Stevenson from 2007, noting that Dr Stevenson had retired by the time of the Tribunal’s hearing and was not to be called to give evidence.[21] Importantly, Dr Pascall reviewed Ms Carvalho in January 2007, in advance of the no liability decision being made by Comcare in relation to the compensation that she had received under the SRC Act. In a subsequent medical report dated 22 November 2021, Dr Pascall confirmed that her opinion from 2007 was not altered having regard to further documentation. Indeed, Dr Pascall wrote that, if anything, her opinion had been reinforced.[22]

    [20] Exhibit R1, T23, pages 63-79; and Exhibit R5.

    [21] Exhibit R1, T28, pages 87-94.

    [22] Exhibit R6.

30. In her supplementary report dated 22 November 2021, Dr Pascall stated that Ms Carvalho’s complaints of neck pains and tingling in her hands had recommenced since she had left Commonwealth employment some 16 months earlier in 2005.[23] Dr Pascall opined, therefore, that ‘association with work activities is not established in 2006’.[24] Additionally, Dr Pascall stated that, in 2006, she did not believe Ms Carvalho suffered carpal tunnel syndrome and now opined that Ms Carvalho has a tear of the right supraspinatus tendon, diagnosed by ultrasound in 2017, and stated that this is a separate medical condition arising more than 10 years after she last worked for the Commonwealth and that this would explain her present need for some assistance with domestic work.[25]

    [23] ibid., page 3.

    [24] ibid.

    [25] ibid., pages 5-6.

31. Dr Pascall further opined that Ms Carvalho’s claimed fall in an internal stairwell while employed with the ABS in the 1980s, and before her employment with the AFP:[26]

    may have caused a muscular injury but that was not manifest or symptomatic at the time she saw Dr Calder in 1985 as there is no mention of complaints relating to a fall in his report of June 1986 or his letter of September 1985. If there was a muscular injury, it had resolved.

    The non-union of the clavicle fracture was not associated with her work or her conditions of work. Aggravation of this condition was not caused by her work conditions but by her posture of the right shoulder and the associated muscle weakness caused by maintaining that posture and avoiding full use of the arm.

    [26] ibid., page 6.

32. Additionally, Dr Pascall stated that the term ‘cervicobrachial syndrome’, with which Ms Carvalho had previously been diagnosed or had been attributed to her complaint:[27]

    was a convenient medical ‘label’ used when there was no objective information available to bring about a diagnosis of an identifiable pathology or disease process.

    I do not believe it is widely used these days if it was ever widely used. It describes only the complaint of pain being present in the neck and arm and gives no information regarding the cause of the pain. It does not identify any pathology.

    [27] ibid., page 7.

33. To this end, Dr Pascall opined that Ms Carvalho did not suffer an ‘aggravation, acceleration or recurrence of a disease which was contributed to by her Commonwealth employment’ and concluded that this employment with the Commonwealth ‘did not contribute to a condition that Ms Carvalho suffered in the 1980s, 1990s or 2000s and not in any condition that she presently suffers’.[28] Dr Pascall’s evidence was comprehensive and accepted by the Tribunal.

    [28] ibid., pages 7-8.

34. The evidence of Dr Vecchio, from his report of 20 January 2021, was that the dominant considerations are external to Ms Carvalho’s Commonwealth employment.[29] Dr Vecchio cited Ms Carvalho’s fractured right clavicle, which occurred in a non-work setting prior to her Commonwealth employment, as being the index and critical event, leading to progressive deformity.[30] He also opined that the claimed injury resulting from the alleged incident at the ABS should have resolved within days, noting that there was no claim before the Tribunal in relation to this alleged incident.[31] Additionally, Dr Vecchio stated that Ms Carvalho’s bilateral carpal tunnel syndrome is ‘definitely constitutional and unrelated to her employment’ with the Commonwealth.[32] At its highest, Dr Vecchio opined that the contribution from Commonwealth employment to Ms Carvalho’s temporary and minor aggravation of her right shoulder condition terminated after her post-1986 surgery.[33]

    [29] Exhibit R5, page 15. 

    [30] ibid.

    [31] ibid.

    [32] ibid., page 16.

    [33] ibid., page 17.

35. For completeness, the Tribunal in these written reasons notes the opinion of Dr Stevenson in his report dated 2 July 2007, that:[34]

    [34] Exhibit R1, T28, pages 92-94.

    The non−union of the fracture relate to the judo incident. The non−union is now resolved and frozen shoulder resolved although often minor restriction is left. It is hard to see major work aggravation.

    Carpal [tunnel] syndrome was once attributed to intensive keyboard use. Current critical reviews do not confirm the association. Obesity is a very strong risk factor.

    There may be genetically determined carpometacarpal osteoarthritis. This is strongly genetic.

    The vague term "cervicobrachial pain syndrome" seems inappropriate. There was very to be specific pathology at the right shoulder and previously in the hands right arm. The term cervicobrachial pain disorder simply means pain in the neck and arm described in the decent obscurity of a learned language. It is a descriptive term used in the absence of medical pathology. A strong association is with psychosocial factors.

    There may have been a non-specific strain around the right shoulder in her fall on the stairs, although that would seem to have been when she was with the Australian Bureau of Statistics. There seems to have been little substantive aggravation of the right shoulder fracture and none recently.

    The carpal tunnel syndrome is constitutional and not work related. I would agree with Dr Pascall[’s] comment that work injuries are not now active.

    …

    The effects of any aggravation are resolved.

    …

    Ms Carvalho told me she is not getting household help. A gymnasium program may have a role in rehabilitation of substantial injury, and it is also useful for general health. Injury seems notional and was 20 years ago. A gymnasium program may be of benefit for health and wellbeing but that seem[s] to be a choice for Ms Carvalho. [citations omitted and errors in original]

36. Based on the weight of expert documentary evidence before the Tribunal and that which was to be called by Comcare to appear at the hearing in this proceeding, the Tribunal is satisfied that Ms Carvalho could not overcome one or both of Comcare’s propositions that she either never suffered a compensable injury for the purpose of the SRC Act or, if she did, that she did not continue to suffer such an injury as of 16 October 2007, being the date when Comcare determined it had no present liability to Ms Carvalho under the SRC Act. That is, the medical evidence demonstrates that Ms Carvalho ceased to suffer from the effects of any compensable condition as of 16 October 2007, and any ongoing symptoms were constitutional and related to a pre-existing right clavicle fracture and other degenerative factors.

1. At the commencement of the Tribunal hearing, Ms Carvalho confirmed her position, enunciated at a pre-hearing directions hearing held in March this year and in writing in 2021, that she was not calling any expert medical evidence in support of her application before the Tribunal.[35] As Counsel for Comcare noted at the substantive hearing, often with self-represented applicants, their position regarding the calling of any expert evidence is not finalised until the day of the hearing. At the substantive hearing, Ms Carvalho’s explanation for not calling any medical practitioner to give evidence in support of her claim was because they were ‘all dead’. This explanation is not accepted by the Tribunal. Ms Carvalho commenced this proceeding in 2019 and failed to provide any expert medical evidence to support her application. The three page report of Ms Carvalho’s general practitioner, Dr Cousins, provided a history of her conditions, but did not amount to an analysis of the connection, if any, to her former employment with the Commonwealth. In short, the reasoning process undertaken was, with respect, not of the same weight and quality as that of Doctors Pascall and Vecchio, who have specialist training, qualifications and knowledge in their respective fields and made assessments in accordance with their obligations as prospective witnesses in this jurisdiction and for the purposes of assessing the link between Ms Carvalho’s claimed condition and employment under the SRC Act.

   [35] Exhibit A4.

2. The evidence in this proceeding was contained in numerous documents formally taken into evidence as exhibits by the Tribunal at the commencement of the hearing.[36] The Tribunal is entitled to assess the strength of Ms Carvalho’s case on that material, especially when the proceeding had reached the first of a scheduled three day hearing of an application that had been on foot for many years.[37] In this regard, the Tribunal had also given careful consideration to this evidence in advance of the hearing, especially the documentary medical evidence. A decision by Ms Carvalho to not lead medical evidence, or an inability to do so, where such evidence is likely determinative of the issues in dispute is a factor weighing heavily against her application and for dismissal, especially in light of the strength of the medical evidence against her claim.

   [36] Exhibits R1-R7 and A1-A6.

   [37] Oliver at [76], citing Novosel v Comcare [2017] FCA 722 at [115].

3. Having surveyed the evidence before it in this proceeding, the Tribunal concludes that Ms Carvalho’s prospects of success are bleak and is satisfied that she has no reasonable prospect of success. As stated in Oliver, uncontradicted medical opinion from qualified experts denying a connection with employment would normally prove fatal to a claim of this kind and an applicant’s self-assessment would rarely displace such opinion.[38] So it is in this proceeding. Most relevantly, the Tribunal in Oliver stated that it is not required to elevate the possibility of strong evidence at a hearing in support of an applicant’s case to the level where they create the hope that a ‘conspicuously fragile case might acquire unexpected strength’.[39] This Tribunal finds these words apposite in this proceeding. The Tribunal must take the evidence as it is presented in making an assessment of whether an application has reasonable prospects of success. For the aforementioned reasons, the Tribunal is not satisfied that Ms Carvalho’s application has reasonable prospects of success. She does not have evidence of sufficient quality and weight to succeed, if the substantive hearing were to proceed, in establishing the necessary connection between her claimed condition and her former employment with the Commonwealth for the purpose of the SRC Act.

   [38] Oliver at [77].

   [39] Oliver at [78].

4. The Tribunal is also mindful and has had regard to its objectives under section 2A of the AAT Act, especially that in carrying out its functions it must pursue the objective of providing a mechanism of review that is, among other things, proportionate to the importance and complexity of the matter. As the Tribunal said in Filsell and Comcare [2009] AATA 90 at [33], while the power of the Tribunal to dismiss proceedings under section 42B of the AAT Act is a power that should be used cautiously, ‘if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing’. In this regard, this Tribunal is satisfied that continuing a three day hearing when the overwhelming weight of medical evidence is so comprehensively against the applicant would not meet the statutory objectives of the Tribunal.

   DECISION

5. The Tribunal dismisses the application for review pursuant to subsection 42B(1)(b) of the AAT Act.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..........................[sgd]..............................................

Associate

Dated: 9 May 2022

Date(s) of hearing:	20 April 2022
Date final submissions received	18 January 2022
Applicant:	In person
Counsel for Respondent:	Mr Peter Woulfe
Solicitors for Respondent:	Mr Jamie Watts, Australian Government Solicitor