Chalhoub and Comcare (Compensation) - [2019] AATA 811

Chalhoub and Comcare (Compensation) [2019] AATA 811 (29 April 2019)
Division:GENERAL DIVISION
File Number(s): 2017/7719
Re:Ghassan Chalhoub
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:29 April 2019
Place:Sydney

The decision under review is affirmed.
.........................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employee — claim for compensation for work related injury denied – whether applicant sustained injury in the course of employment – pre-existing condition – whether applicant entitled to compensation for neck and lower back injury and head tension and migraines — decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Fox v Percy [2003] HCA 22
Gestmin SGPS S.A. and Credit Suisse (UK) Limited [2013] EWHC 3560
K&S Freighters Pty Ltd v McQueen-Thomas (sic) [2018] FCA 1518
McAuliffe v Secretary, Department of Social Security [1991] 23 ALD 284
McQueen-Thomson and K&S Freighters Pty Ltd [2016] AATA 510
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Re Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63
Re the Commonwealth of Australia and Kathleen Beattie [1981] FCA 88
Roncevich v Repatriation Commission [2005] 218 ALR 733
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
The Nominal Defendant v Cordin [2017] NSWCA 6
Wilson and Comcare [1996] AATA 862
REASONS FOR DECISION
Chris Puplick AM, Senior Member
29 April 2019
Background

Mr Ghassan “Gus” Chalhoub (the Applicant) seeks a review by this Tribunal of a decision made initially by Comcare on 15 November 2017 and affirmed by it on 14 December 2017 (the reviewable decision) to deny his claim for compensation for a claimed work-related injury under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The Applicant lodged his claim on 12 September 2017 referencing incidents at work which he recorded as either being first noticed on 22 May 2017 or being manifest on 21 July 2017.[1]
[1] Section 37 Tribunal Documents at [13]; [10] and [9] in respect of each of the dates.
It should be noted that Comcare’s opening paragraph of their Statement of Facts, Issues and Contentions reads as follows:
“On 27 June 2017, the Applicant submitted a claim for workers compensation …. For ‘neck and lower back injury’ and ‘tension headaches and migraines’ …. which he claims were sustained on 22 May 2017 and 21 July 2017 respectively.”
This is not accurate. The Application was submitted on 12 September 2017 at 9.04 pm.[2] In any respect, a claim “submitted” on 27 June 2017 can hardly have referenced an incident on 21 July 2017.
[2] Ibid at [13].
Furthermore, the Applicant did not claim that an injury “was sustained” on 22 May 2017, he gave that date in answer to a question on the claim form in the following terms: “When did you first notice your symptoms/injury?”[3] A more accurate outline of this claim is contained later in the same document at paragraphs (3.3) to (3.5).[4]
[3] Ibid at [10].
[4] Respondent’s Statement of Facts, Issues and Contentions.
APPROACH
The Tribunal…

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 Chalhoub and Comcare (Compensation)

Details

AGLC: Chalhoub and Comcare (Compensation) [2019] AATA 811
Case: [2019] AATA 811
Decision Date: 29 April 2019

CaseChat Overview and Summary

This matter concerned an appeal by an employee, Mr Chalhoub, against a decision by Comcare to deny his claim for compensation for a work-related injury. The dispute centred on whether the applicant had sustained an injury, specifically neck and lower back pain and head tension and migraines, in the course of his employment, or whether these conditions were attributable to a pre-existing condition. The case was heard by Senior Member Chris Puplick AM of the Tribunal.

The legal issues before the Tribunal were whether the applicant's claimed conditions constituted an "injury" as defined by the relevant legislation, and if so, whether that injury arose out of, or in the course of, his employment. This required the Tribunal to assess the causal connection between the applicant's work activities and his physical complaints, and to determine whether any pre-existing conditions were aggravated by his employment.

The Tribunal's reasoning was guided by expert medical evidence, particularly a report from Dr Shahzad, which indicated that the applicant's neck and back pain likely originated from a severe motor vehicle accident in 2002, and that his current symptoms were a recurrence or aggravation of this pre-existing condition. While other medical practitioners and a physiotherapist had suggested a link between the applicant's symptoms and his work environment, including workstation setup and lifting activities, the Tribunal found the evidence persuasive that the underlying cause was the 2002 accident. The Tribunal noted the absence of a clear work-related mechanism for the injury and concluded that the applicant had failed to establish the necessary causal link between his employment and his conditions, particularly in relation to the migraines which were of long-standing duration and not shown to be work-related.

The Tribunal affirmed the decision under review, finding that the applicant had not established that his conditions were a compensable injury arising out of or in the course of his employment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

His report noted that it had been almost six months since he had seen the Applicant and that his new report included reference to a considerable amount of material not previously available to him. He opined:On his previous presentation…[The Applicant] reported that he has [sic] reported no significant past medical history. He reported no previous history of motor vehicle accident…It seems from the elicited information that [the Applicant] is suffering from longstanding chronic back pain from possibly whiplash-associated trauma from the severe motor vehicle accident in 2002. It seems that he has had ongoing recurrent neck pains. I had commented earlier that he has recurring episodes of neck and low back pain. It is expected that these recurrences in the future will continue as well. However, on the background of his severe motor vehicle accident, it seems that the most obvious trauma he has had to his neck in his life has been related to the motor vehicle accident.It seems that he has a consistent history of recurring neck pain since 2002. The consultation notes from his treating GP reports, recurrent neck pain with chronic stiffness as a result of the severe motor vehicle accident of 2002. It is highly likely that his ongoing current presentation [regarding his neck] is related to the motor vehicle accident of 2002. He has had recurrent presentations of neck pain with ongoing aggravations.……[The Applicant] had identified subtle events contributing to the presentation of his significant conditions. There was a lack of a traumatic incident at work to result in an injury. I maintain my opinion that it seems to be an aggravation of a pre-existing condition. However, due to his pre-existing condition, he suffers from recurrent muscular pains. … I am still unable to explain the work related mechanism of injury, relating to use of two monitors in the light of evidence-based literature. In my opinion, his presentation was considered to be recurrent neck pain related to a pre-existing condition. In the light of new evidence, it is possibly related to the motor vehicle accident in 2002.[36][36] Report of Dr Shahzad dated 18 May 2018. The footnoted reference in the Respondent’s Statement of Facts, Issues and Contentions at [4.67] is entirely inaccurate and incorrect in suggesting that this report was included in the original Section 37 Tribunal documents. It was submitted with that Statement at a later date.CONCLUSIONS AS TO THE MEDICAL EVIDENCE The Tribunal is required to come to some conclusion about each of the Applicant’s claimed conditions and assess for itself (guided by expert evidence) the extent to which each is a compensable condition. Section 5A of the Act (relevantly) provides that:(1) In this Act: "injury" means: (a) a disease suffered by an employee; or (b) 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; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.

Decision

Reasons for decision

Ms Truong gave clear and direct evidence to the Tribunal, by telephone, in which she explained her findings in relation to the Applicant and made clear that she did not link eye strain or dry eyes directly to any propensity to precipitate migraine headaches. She did confirm that neck strain was often seen in patients who did not have access to proper ergonomic working conditions when using screens but also agreed that the problems as reported by the Applicant appeared to have been apparent for a long period of time.Diagnoses and conclusions Dr Muhammad Sharif has treated the Applicant for many years and issued a number of medical certificates (WorkCover NSW certificates of capacity) on his behalf.·On 15 June 2017 Dr Sharif issued a certificate stating: “due to excess neck movement and glare in eyes, the tension headaches and neck stiffness have arisen, low back pain started at work after having had lifted (sic) something off the floor at work”[28]·On 14 September 2017 Dr Sharif repeated this diagnosis and in his commentary on the management of the Applicant’s condition and working environment noted that “Since the above mentioned changes have not been given to the patient, his symptoms of neck stiffness, low back pain and tension headaches have worsened since May 2017.”[29][28] Ibid at [210].[29] Ibid at [201]. It is clear that Dr Sharif was of the view that the nature of the Applicant’s working environment caused the symptoms the Applicant was experiencing. . Mr Michael Lewis, a physiotherapist, has also been treating Mr Chalhoub for some time has been responsible for a number of treatment sessions with the Applicant, some of which were subsidised by the employer under the Early Intervention programme. His principal diagnosis was reported on 14 September 2017 when he wrote:“As you may be aware Ghassan is currently undergoing physiotherapy management for left sided non-specific neck pain and right sided lower back pain.I believe the cervical spine injury to be a form of postural overload associated with work station set up and I would recommend ergonomic assessment.”[30][30] Ibid at [16]. There is clear evidence, not contradicted by the Applicant, that the ergonomic changes recommended by both the Early Intervention Assessment Report (25 September 2017)[31] and following advice from Dr Sharif in the WorkCover certificate, were implemented and the Applicant was provided with a new workstation, a single monitor and a lumbar support cushion.[32][31] Ibid at [23].[32] Ibid at [32]. Despite this, Mr Lewis reported on 23 October 2017, “These changes have not yet improved any symptoms. The lumbar spine pain started when picking up a bag at work and has been intermittent ever since.”[33][33] Ibid at [110]. Following this report, further ergonomic changes were made to the Applicant’s work environment.[34][34] Ibid at [112]-[115]. In his oral testimony to the Tribunal, Mr Lewis made a number of concessions in relation to matters put to him by the Respondent’s counsel, to the effect that:1.It was hard for him to say “with 100% confidence” that all of the Applicant’s reported conditions were work-related;2.A previous whiplash injury (such as that which may have arisen from the 2002 car crash, about which Mr Lewis had no previous knowledge) may well have been the initial cause of the neck pains suffered by the Applicant and his current pains may be an exacerbation of that original injury; and3.He had started work as a physiotherapist in 2016 and had not previously seen a patient with the same suite of conditions and, in these circumstances, would defer to specialist opinion about their aetiology.

Ratio Decidendi

Legal Principle Established

Taking into account all of the circumstances, including the Applicant’s belief that the details of his car accident were already before Dr Shahzad, although his response to Dr Shahzad’s questions was misleading in its incompleteness and was, of itself, false, the Tribunal nevertheless does not believe there is enough evidence before it to conclude that it was also “wilful” in the terms of s 7(7) of the Act. Hence the conjunctive requirement in this section is not met.CONSIDERATIONS This application must fail for the reasons outlined above. There is no doubt that the Applicant has, subjectively, felt unwell and suffered problems and pain with his neck and back and has, from time to time, suffered migraines. However the evidence is persuasive that the neck and back pains originate with the car accident (outside work) in 2002 and have persisted ever since. In this instance they are pre-existing conditions. The migraines are of long-standing duration and have not been shown to have their aetiology in anything related to the Applicant’s employment. The absence of any physiological change in the Applicant’s condition arising from or related to his employment means that he has failed to establish the necessary causal connection between the two as is required by the Act.DECISION The decision under review is affirmed.