Chalfont and Comcare (Compensation)
[2016] AATA 1083
•23 December 2016
Chalfont and Comcare (Compensation) [2016] AATA 1083 (23 December 2016)
Division
GENERAL DIVISION
File Number
2016/2384
Re
Jeffrey Chalfont
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Member D K Grigg
Date 23 December 2016 Place Brisbane The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
COMPENSATION — Commonwealth employees - whether applicant continues to suffer effects of accepted condition – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Member D K Grigg
23 December 2016
INTRODUCTION
On 20 June 2014 Comcare accepted Mr Chalfont’s claimed condition of hernia (incisional) (“Hernia Injury”).[1] Comcare subsequently approved compensation for surgery to repair the Hernia Injury.[2] The Hernia Injury was repaired by Dr Sally Butchers in July 2014.
[1] Exhibit 4, T Documents, T1.12, page 21.
[2] Exhibit 4, T Documents, T1.18, pages 136-137.
On 9 September 2015 Mr Chalfont then claimed compensation for permanent impairment resulting from his Hernia Injury.[3]
[3] Exhibit 4, T Documents, T1.15, pages 26-37.
On 24 March 2016 Comcare denied liability for medical expenses under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) in relation to the Hernia Injury on the grounds that the medical evidence did not support Mr Chalfont’s contention that he was still suffering any effects from the condition.[4] Mr Chalfont sought reconsideration. A further review was conducted and on 12 April 2016 the decision to deny to compensation was affirmed.[5]
[4] Exhibit 4, T Documents, T1.19, pages 84-85.
[5] Exhibit 4, T Documents, T1.20, pages 86-89.
Mr Chalfont has applied for review of the 12 April 2016 decision by this Tribunal.[6]
[6] Exhibit 4, T Documents, T1, pages 1-3.
ISSUES FOR DETERMINATION
The issue for determination is whether Mr Chalfont is entitled to compensation for his Hernia Injury under s 16 of the Act.
A consideration of whether Mr Chalfont is entitled to compensation under s 16 of the Act involves determining whether Mr Chalfont:
(a)continues to suffer effects of accepted injury, and, if yes,
(b)reasonably requires medical treatment in relation to “hernia”.
It is not in contention that Mr Chalfont continues to suffer pain. However, whether the source of that pain is as a result of the Hernia Injury is disputed.
LEGISLATIVE REQUIREMENTS
The right to compensation for an employee under the Act is conferred by s 14(1) of the Act which provides that Comcare is:
… liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 5A(1) of the Act to mean, so far as this case is concerned:
… an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment.
DOES MR CHALFONT CONTINUE TO SUFFER THE EFFECTS OF HIS HERNIA INJURY?
The Medical Evidence
Subsequent to Mr Chalfont’s surgery to repair the Hernia Injury, Mr Chalfont continued to complain of pain.
On 30 March 2015 Mr Chalfont was reviewed by Dr Austin Curtin, general surgeon. Dr Curtin reported:[7]
The hernia was repaired…with no complication.
Mr Chalfont describes continuing pain…
The real question here is whether he has pain due to a surgical problem or pain as a result of chronic pain syndrome.
he had mild tenderness above and to the left of the umbilicus
There was no evidence of a recurrent hernia, but there is thickening around the site of the previous surgery and near the mesh.
[7] Exhibit 4, T Documents, T1.14, pages 24-25.
Dr Curtin concluded:[8]
I can find no surgical cause for his pain. I believe this is a chronic pain problem
[8] Exhibit 4, T Documents, T1.14, pages 24-25.
In September 2015, Dr Lai, Mr Chalfont’s general practitioner, reported that Mr Chalfont was still reporting abdominal pain after the Hernia Injury repair.[9]
[9] Exhibit 4, T Documents, T1.15, pages 26-37.
Dr Lai’s clinical notes record that Mr Chalfont continued to complain of persistent paraumbilical pain after the repair operation through to November 2015.[10]
[10] Exhibit 4, T Documents, T1.16, pages 55, 57, 58, 61, 63.
On 11 November 2015 Mr Chalfont was reviewed by Professor Michael O’Rourke AM, general surgeon. Professor O’Rourke concluded:[11]
[the] incisional hernia…is healed both anatomically and on a Computed Tomography (CT) Scan performed by Northquest Radiology in January 2015.
The pain is inconsistent with post repair incisional hernia pain and I believe, as does Dr Austin Curtin, General Surgeon, that this is a chronic pain syndrome and Mr Chalfont’s symptoms in fact relate to pain which developed in his knee initially and then depression, and the fact that he has been unemployed since 1992.
… Mr Chalfont has a sound repair of his incisional hernia which is confirmed radiologically and there is no clinical evidence of recurrence nor local tenderness.
Also, the pain Mr Chalfont complains of is inconsistent with wound pain.
The symptoms that Mr Chalfont complains of are not consistent with an incisional hernia.
I believe Mr Chalfont’s chronic pain syndrome is associated with his depression and his long lack of employment.
… I believe that he has no impairment as his incisional hernia has been repaired and is not the cause of his present symptoms.
[11] Exhibit 4, T Documents, T1.17, pages 65-82.
In January 2016 Dr Lai reported that Mr Chalfont’s scar across the abdomen was tender.[12]
[12] Exhibit 4, T Documents, T1.18, page 83.
At the hearing Mr Chalfont tendered a pamphlet article Dr Butchers gave him prior to the hernia repair surgery.[13] The pamphlet is prepared by the Royal Australasian College of Surgeons and is called “Surgery to Repair Hernia, A guide for patients”. Mr Chalfont pointed out that it states that a possible complication of hernia repair is “chronic pain…due to involvement of a nerve in the repair” and that “injury to nerves” is a risk of laparoscopic surgery.[14]
[13] Exhibit 13.
[14] Exhibit 13.
Mr Chalfont submitted to the Tribunal that it was the possible he had suffered nerve damage from the repair surgery and that this is why he continues to experience pain.
However, there is no medical evidence that Mr Chalfont suffered any nerve damage. Further, the opinion of the surgical experts is that the repair surgery was sound and that the pain complained of cannot be as a result of the surgery. Further, none of the specialists that reviewed Mr Chalfont mentioned nerve damage as a possible cause of Mr Chalfont’s pain.
Further, I note also that Mr Chalfont originally presented with chronic pain in 1997 (this is 17 years prior to the incision hernia repair). Dr Derek Johns, a consultant psychiatrist reports that at that time Mr Chalfont was taking Zoloft, Panadeine Fort and Endep. Dr Johns reported that Mr Chalfont mentioned the possibility of taking Methodone but Dr Johns suggested referral to a pain clinic would be more appropriate before taking such a step.[15]
[15] Exhibit 4, T Documents, T3, page 91.
I find that the medical evidence provided is consistent. The specialists are not in any disagreement about the possible cause of Mr Chalfont’s ongoing pain symptoms. They are also in agreement that the pain Mr Chalfont says he is experiencing is not being caused by the hernia injury.
I find that, while Mr Chalfont may be suffering from chronic pain, it is unrelated to the originally compensable injury, I find that Mr Chalfont is no longer suffering any effects of the accepted injury. Comcare is not liable to pay compensation in relation to the Hernia Injury.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 23
(twenty-three) paragraphs are a true
copy of the reasons for the decision
herein of Member D K Grigg.........................[Sgd]...............................................
Associate
Dated 23 December 2016
Date of hearing 15 November 2016 Applicant By phone Respondent In person Counsel for the Respondent Mr Ben Dube
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Causation
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Appeal
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Remedies
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Statutory Construction
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