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

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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carvalho and Comcare (Compensation)

Details

AGLC: Carvalho and Comcare (Compensation) [2022] AATA 1081
Case: [2022] AATA 1081
Decision Date: 20 April 2022

CaseChat Overview and Summary

This matter concerned an application by Ms Carvalho for review of a decision by Comcare, heard by the Administrative Appeals Tribunal (AAT). The central dispute revolved around whether Ms Carvalho's application had any reasonable prospect of success, as Comcare had applied for the Tribunal to dismiss her substantive application on this basis.

The legal issue before the Tribunal was whether it was satisfied that Ms Carvalho's application had no reasonable prospect of success, pursuant to section 42B of the *Administrative Appeals Tribunal Act 1975* (AAT Act). This required the Tribunal to assess the evidence presented to determine if there was sufficient quality and weight to enable Ms Carvalho to succeed at a hearing.

The Tribunal reasoned that, in accordance with established principles, it must conduct a critical assessment of the evidence, drawing all reasonable inferences in favour of the applicant, but giving particular weight to expert medical evidence. In this case, the Tribunal found the evidence underpinning Ms Carvalho's claim to be weak. It noted that expert medical opinions from Dr Virginia Pascall and Dr Phillip Vecchio indicated that Ms Carvalho's medical conditions were unrelated to her Commonwealth employment. Dr Pascall's opinion, formed in 2007 and reinforced in a 2021 report, concluded that work activities were not established as the cause of her complaints and that a diagnosed tendon tear was a separate condition arising long after her employment. The Tribunal considered that continuing a hearing when the overwhelming weight of medical evidence was against the applicant would not be proportionate or efficient, aligning with the objectives of the AAT Act.

Consequently, the Tribunal was satisfied that Ms Carvalho's application had no reasonable prospect of success and, pursuant to section 42B(1)(b) of the AAT Act, dismissed the application for review.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. From 1985, Ms Carvalho was employed with the Australian Federal Police (AFP) in an administrative role. During various periods from the 1980s and up until 2007, Ms Carvalho has received workers’ compensation from the Commonwealth. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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.