Chambers and Comcare (Compensation)

[2021] AATA 2870

Chambers and Comcare (Compensation) [2021] AATA 2870 (16 August 2021)

Division:GENERAL DIVISION

File Number(s):2020/5577 and 2020/2114      

Re:Deborah Chambers  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Damien O’Donovan 

Date: 16 August 2021

Place:Canberra

The decisions under review are affirmed.

…………….[sgd]…………..
Senior Member Damien O’Donovan 

Catchwords

WORKERS’ COMPENSATION – whether Applicant suffered from a 'disease' or 'injury' within the meaning of the Safety, Rehabilitation and Compensation Act 1988 – whether applicant suffered a work-related aggravation of an underlying condition – whether the respondent is liable to pay compensation in respect of claimed condition – decision under review affirmed.

WORKERS’ COMPENSATION – where the Respondent refused a request for an extension of time to seek review – application for extension of time two years after determination – explanation for the delay – where claim has no merit – decision under review affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14, s 62(3)(b)

Cases
Actew AGL Distribution v Australian Energy Regulator [2011] FCA 639
Comcare v Stefaniak [2020] FCA 560
Commonwealth v Beattie [1981] FCA 88
Commonwealth v Snell (2019) 370 ALR 1; 164 ALD 422; [2019] FCAFC 57
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Hamden v Secretary, Department of Human Services [2013] FCA 3
Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Seiler v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 878; (1994) 48 FCR 83

REASONS FOR DECISION

Introduction

1. The applicant is seeking a review of two decisions.

2. The first is Comcare’s decision to deny liability to pay compensation in respect of an alleged ‘aggravation of cervical injury, bilateral supraspinatus and subscapularis tendinosis, bilateral bursitis and ac joint arthrosis’ pursuant to s 14 of the Safety, Rehabilitation and Compensation Act  1988 (SRC Act).

3. The second is Comcare’s decision to decline the applicant’s request for reconsideration of a decision determining that Comcare had no present liability to pay compensation in relation to injuries sustained in a fall on 27 August 2018. The request for reconsideration was declined on the basis that the request was outside the 30 day timeframe for making such a request as required by s 62(3)(b) of the SRC Act.

   Issues

4. In proceedings 2020/2114 the applicant’s claim is in respect of an aggravation of an underlying cervical injury, bilateral supraspinatus and subscapularis tendinosis, bilateral subacromial bursitis and ac joint arthrosis. The date of injury is 10 December 2018. The initial claim was that the aggravation was caused by ‘inappropriate work’, namely intensive computer inputting which caused an aggravation of her known pre-existing injury – cervical spondylosis.[1]    

   [1] Applicant’s SOFIC para [2]

5. In proceedings 2020/5577, the applicant sought to re-open an earlier Comcare decision of 27 November 2018 which found that the respondent had no present liability as at 19 October 2018 for medical expenses or incapacity payments in respect of the applicant’s injuries suffered in a fall on 27 August 2018. The applicant sought review of that decision on 1 September 2020, almost two years after the original decision. Comcare declined to reconsider the decision on the basis that the request for review was out of time. The refusal of the extension of time is the subject of review.

   Evidence

6. The matter was heard on 26 and 27 May 2021.

7. I received oral evidence from:

   (a)The Applicant;

   (b)Dr Ambreen Ali;

   (c)Dr Tony Kostos; and

   (d)Dr Suren Jayaweera.

8. I also received into evidence the following exhibits:

   (a)T-Documents in Application 2020/2114 (Exhibit 1);

   (b)Supplementary T-Documents in Application 2020/2114 (Exhibit 2);

   (c)T-Documents in application 2020/5577 (Exhibit 3);

   (d)Volume 1 of 2 volume bundle filed by Respondent on 25 May 2021 (Exhibit 4);

   (e)Volume 2 of 2 volume bundle filed by Respondent on 25 May 2021 (Exhibit 4);

   (f)'Repetitive Strain Injury/Occupational Overuse Syndrome: A Statement by the Royal Australasian College of Physicians', December 1988;

   (g)C. Milgrom et al, 'Rotator-Cuff Changes in Asymptomatic Adults' (1995), British Editorial Society of Bone and Joint Surgery;

   (h)J.S. Sher et al, 'Abnormal Findings on Magnetic Resonance Images of Asymptomatic Shoulders' (1995), the Journal of Bone and Joint Surgery; and

   (i)P.N. Sambrook et al, 'Genetic Influences on Cervical and Lumbar Disc Degeneration' (1999) Arthritis and Rheumatism.

9. As a witness the applicant appeared straight forward but it was clear that she now viewed the past through the prism of her current understanding of her injury. The account she gave of the onset of symptoms in her statement closely linked an increase in computer based work to increased neck pain.[2] The contemporaneous medical notes however reveal a much more complex picture concerning the applicant’s condition than was revealed in her statement and evidence.

   [2] Exhibit 4 p 2-3

10. To the extent that the applicant’s version of events was different from what appeared in contemporaneous documents, I have treated the contemporaneous documents as giving a more reliable picture.

11. I have considered carefully the applicant’s history to determine the role her workplace was playing in relation to the pain she experienced from late 2018 until mid-2020. I am not satisfied that there was any association between the applicant’s symptoms and her work. Given that her underlying cervical spine condition is not work related, in the absence of a credible history of an association between the applicant’s symptoms and her work duties, I am not satisfied that the applicant’s employment caused, or significantly contributed to the aggravation of her symptoms. Consequently, the applicant failed to demonstrate that her employment contributed to a significant degree to the aggravation of her underlying condition.

12. In relation to the question of whether or not an extension of time should be given to the applicant to contest the decision to cease liability in respect of the claim concerning the applicant’s August 2018 fall, the medical evidence is clear that the injuries suffered in that fall had resolved by November 2018. There is no prospect that Comcare or the Tribunal could come to a different conclusion to the one reached in the original decision. Given that the underlying claim is hopeless, it would not be appropriate to grant an extension of time to seek review of the decision. 

    Facts

13. In September 2018 the Administrative Appeals Tribunal (the Tribunal) in proceedings between Comcare and the applicant, made a decision by consent, that the applicant had suffered an ‘aggravation of cervical degenerative disease’ being a disease that was significantly contributed to by her employment with the Department of Defence and deemed to have been sustained on 1 December 2015.

14. The Tribunal decision noted that the applicant ceased to suffer the effects of the injury on 30 November 2017.

15. The concept of issue estoppel does not apply in the Tribunal,[3] so in theory I could revisit whether the previous acceptance of liability was appropriate and consider whether the agreed resolution of symptoms did in fact occur. But in this case, I am satisfied on the evidence before me that there is no reason to adopt a different factual starting point for considering this matter. The applicant does not suggest that she was suffering any work-related symptoms from November 2017 until the second half of 2018 and the respondent does not deny that the applicant has underlying cervical degenerative disease. In those circumstances I will proceed on the basis that the previous AAT decision accurately records the applicant’s condition in late 2017 and then outline the facts from the beginning of 2018. The following represent my findings of fact based on the evidence before me.

    [3] Commonwealth v Snell (2019) 370 ALR 1; 164 ALD 422; [2019] FCAFC 57.

16. At the start of 2018 the applicant was working in the Estate and Infrastructure Group (E&IG) at the Department of the Defence working on issues related to what is known as PFAS – a fire fighting product which has led to possible civil claims against the Department of Defence.

17. In February 2018 the applicant moved to Australian Geospatial Organisation (AGO) on a temporary transfer. The work arrangements in AGO seem to have suited the applicant and no claims of aggravation of her underlying degenerative condition have been made in relation to her time there.

18. On 27 August 2018, shortly before the applicant was due to return to her previous position in the E&IG, she went to that area for a handover meeting about her return. At that meeting she suffered an injury. On the applicant’s account[4] which is not contested, she was sitting on a credenza, which was on wheels. The credenza shot out from under her, throwing her backwards into the cabinet behind her. Her head hit the cabinet with some force hyper-extending the right-hand side of her neck. She was given ice for the head injury and remained seated for about 30 minutes. She did not lose consciousness. She saw her GP in relation to the incident that day. The accident was serious, but its effects were not long lasting. The applicant’s GP, Dr Ali stated in a certificate of capacity for work that ‘the injury was from 27/08/18-14/9/18 the injury is now healed and the claim is now closed’.[5] Comcare accepted liability in relation to the claim on 7 November 2018. On 27 November 2018 Comcare issued a determination that it had no present liability as at 19 October 2018 for medical expenses or incapacity payments in respect of the claim. The applicant did not seek review of that decision until 7 August 2020.

    [4] Exhibit 3, page 321.

    [5] Exhibit 3, page 31.

19. Following the accident, the applicant had a couple of periods off work, the second of which was in September 2018. The second period of leave is the subject of contest as to whether it related to the injury but that is not an issue which it is necessary for me to resolve. The important point is that the applicant’s injury had certainly resolved by no later than 14 September 2018.

20. Following her recovery from the accident (which I am satisfied on the basis of the GP’s contemporaneous assessment was a complete recovery[6]) the applicant returned to work at E&IG.

    [6] See exhibit 3 page 31, which describes the injury as ‘now healed and the claim now closed’. I note that the Dr Ali at hearing seemed to think that the applicant’s current symptoms were the product of the fall in August 2018 but that is not consistent with the applicant’s history or the opinions of either specialist who gave evidence.

21. The applicant’s evidence was that on her initial return to E&IG the work was varied but she did have some problems which she reported to her GP, Dr Ali. The medical notes confirm that.  She saw Dr Ali on 20 November 2018 and complained that work was busy and stressful and it was triggering RSI in her left arm and neck and upper back.[7] On examination her cervical spine was tender.

    [7] Exhibit 4, page 209.

22. Significantly, no similar reports were made again to Dr Ali until May 2019.[8]

    [8] Exhibit 4, page 210-213.

23. In the last few months of 2018, the applicant’s duties changed and became less varied with more computer work.

24. In December 2018 the applicant saw Dr Urolagin, another GP at a different medical practice. When she saw him he recorded the following:

    2/12 symptoms of general bodyache returned, feels low, emotional, not sleeping well, weepy, reduced apatite (sic), trying to loost wt but no success…Had to take antidepressant in the past for similar episodes.

    Discussed treatment, keen for meds, start dulox[9]   

    [9] Exhibit 4 p 779

25. The applicant claimed in her evidence that the medication was given to her to manage depression and chronic pain. I am satisfied that that is the case. However, the pain it was prescribed for was not the arm and neck pain which is the subject of the current claim. A ‘general body ache’ is not the same as the much more specific condition about which the applicant made complaints about before and after that visit.

26. The applicant returned to Dr Urolagin on 24 December 2018. He recorded:

    She feels her mood has improved with tabs, sleeping bit better but still has bodyache. Discussed increase to 60mg

27. There is no mention of work or postures causing specific pain and no record of the pain being described as localised in any area of the body. There is no evidence that Dr Urolagin undertook a physical examination to rule out a physical cause for the described pain and the reason for the contact is described as ‘depression’. In these circumstances I am satisfied that the pain the applicant was complaining about in December 2018 had nothing to do with her cervical spine or arms.

28. During this time the applicant’s relationships at work deteriorated. The applicant claims that her neck and arm pain was getting worse but there is no contemporaneous evidence of it. Notwithstanding that the applicant attended doctors at Dr Urolagin’s practice on 6 occasions between December 2018 and April 2019 there was no report of cervical pain or arm pain from excessive computer work.[10] In the same period the applicant saw doctors at Dr Ali’s practice on five occasions and again there was no mention of cervical pain or arm pain from excessive computer work.[11]  

    [10] Exhibit 4, pages 777-779.

    [11] Exhibit 5, page 210-212.

29. In February 2019 the applicant commenced two months long service leave. [12] The applicant claims that this was for reasons which included ‘to deal with her neck issues’.[13] I do not accept that evidence. That evidence is inconsistent with the lack of any treatment in the relevant period and is not supported by statements she made shortly after returning to work in 30 April 2019. In an email to her supervisor she said: [14]

    I took two months of LSL [long service leave] in February and March as I was both tired and because of my lack of meaningful and rewarding work. However, the Proximity contractors are being extended for a further 6 months which means that I will continue to have no complex procurement work to do and my skill sets will continue to be excess to requirements.

    [12] Exhibit 4, page 3.

    [13] Transcript p 28

    [14] Exhibit 1, page 64.

30. On 6 May 2019 the applicant commenced leave to visit her husband’s daughter who was having her first baby in Melbourne.

31. On 7 May the applicant was informed that she was not excess to requirements and would not be given a voluntary redundancy.

32. 13 May 2019, for the first time in almost 6 months, the applicant reported cervical spine pain and upper arm pain to Dr Ali. On physical examination Dr Ali found she had good range of movement in the cervical spine with tender base and spine-trapezii very tight. The applicant was certified unfit for work until 31 May 2019.

33. After that Dr Ali certified the applicant as fit for work only four days per week.

34. The applicant’s evidence is that following her return to work she was given even more work by her supervisor. The contemporaneous evidence however indicates that the applicant’s supervisor was diligent in ensuring that medical restrictions were observed.[15]

    [15] Exhibit 1, page 34.

35. In the period between May 2019 and February 2020 the applicant’s pain was the subject of investigation. Investigations revealed that the applicant was suffering from degenerative disc disease at the levels of C3-C6. Nerve root impingement was present at C4.[16]

    [16] Exhibit 1, page 29.

36. Notwithstanding these findings, and the very weak association between the applicant’s symptoms and work, it appears that the applicant’s treating GP’s working hypothesis was that her symptoms were being aggravated by work and so her duties should remain restricted.

37. The applicant remained unhappy at work and unhappy with her supervisors. In September 2019 an issue arose about the applicant undertaking a diploma in dog grooming and looking to commence a dog grooming business. Her supervisors insisted that the applicant apply for approval for outside work. In October the request to undertake outside employment was declined.

38. In November 2019 the applicant submitted a compensation claim. It described her condition as: [17]

    Further aggravation of cervical injury; 2. Bilateral supraspinatus and subscapularis tendinosis 2. Bilateral subacromial bursitis; and 4. AC joint arthrosis.

    [17] Exhibit 1, page 39.

39. The claim form identified repeated computer input as the tasks she was doing when she was injured and included an indication that ‘I injured my neck August 2018 in an accident in the workplace that appeared to be improved after intensive osteopathic and physiotherapy. This may have contributed to the increased aggravation of the cervical injury’.

40. In December 2019 the applicant was examined by Dr Kostos, a rheumatologist engaged by Comcare. Dr Kostos confirmed that the changes in the applicant’s cervical spine arose from ‘disc degeneration and osteoarthritis and do not represent an injury.’ He concluded that ‘they are constitutional in origin and are contributed to by the normal aging process’. Dr Kostos assessed the applicant as not having any work-related conditions and simply gets a stiff neck with referred pain if she sits in a stationary position for too long’.[18]

    [18] Exhibit 1, page 118.

41. In February 2020 the applicant took a voluntary redundancy and left employment with the Department of Defence.

42. However, after leaving work the applicant’s condition worsened.

43. Eventually she was referred by her GP to Dr Jayaweera, a specialist rheumatologist. He prepared a report dated 7 July 2020.

    Since [seeing Dr Kostos] Deborah had (sic) got worse as she could not get her regular massage therapy, gym or osteopathic treatments. She had been doing regular exercises for the neck but noted worsening even if she missed it for one day….CT of the neck in July 2019 showed fairly significant spondylitic changes with foraminal narrowing and impingement of the left C4 nerve root and also bilateral C5 nerve root. There was potentially some involvement of the C6 nerve root also….I am suspicious whether she has developed a significant cervical radiculopathy.[19]

    [19] Exhibit 4, page 102-103.

44. Dr Jayaweera referred the applicant for a steroid injection at the left C4/C5 nerve root. This caused her pain scores to move from 6/10 to 1/10. The applicant does not appear to have complained of significant symptoms since.

    Medical Evidence

45. The specialist evidence was consistent. The applicant suffers from disc degeneration and osteoarthritis in her spine. These changes are constitutional in nature and age related and not the result of her work. Dr Jayaweera[20] and Dr Kostos[21] are consistent in that view.

    [20] Transcript of Proceedings, 27 May 2021, page 167.

    [21] Transcript of Proceedings, 26 May 2021, page 98.

46. Dr Ali, the applicant’s GP gave evidence that the pain from which the applicant suffered is related to her fall in August 2018, but neither of the specialists gave any credence to that theory.[22]

    [22] Transcript of proceedings, 27 May 2021, page 113; page 177.

47. In those circumstances I am satisfied that the underlying condition from which the applicant suffers in her cervical spine is constitutional rather than being a disease significantly contributed to by her employment. However, her primary contention is that her computer-based work between December 2018 and her departure from the Department of Defence aggravated the underlying condition, forcing her to reduce her hours and seek medical treatment.

48. In light of the facts, I have found there is no credible basis for finding that the applicant suffered a work-related aggravation of her underlying condition. Between December 2018 and February 2019 there were no complaints of cervical spine, shoulder and left arm pain to either of the applicant’s GP’s. The applicant took extended periods off work in February, March, April and May 2019 with no resolution of her pain. Indeed, her pain worsened so that she was unable to continue to work five days per week upon returning to work in May 2019. When the applicant ceased work in February 2020 her pain did not resolve. The applicant’s significant pain only resolved when she received a steroid injection into her cervical spine in July 2020.

1. This sequence of events gives no support for the theory that at any point between December 2018 and the applicant’s departure from the Department of Defence did she suffer an aggravation of her underlying constitutional condition that was contributed to, to a significant degree by her employment with the Commonwealth. To the extent that Dr Jayaweera’s report of 7 July 2020 suggests any different it is the product of an imperfect history concerning the applicant’s symptoms.

2. For completeness I note that both specialists were also clear that it would not be possible to be satisfied that the applicant’s injury suffered in August 2018 had anything to do with the worsening of the underlying degenerative changes in the applicant’s spine which were observable in the radiology.[23]

   [23] Transcript of proceedings, 27 May 2021, page 134; page 167.

3. Accordingly the reviewable decision denying the applicant’s claim is affirmed.

   Extension of time

4. After the applicant’s fall on 27 August 2018 she delayed making a claim until 17 October 2018. Comcare dealt with the claim promptly and accepted liability on 7 November 2018. On 27 November 2018 Comcare made a determination of no present liability. That decision was consistent with the medical evidence. As noted above the applicant’s GP Dr Ali had provided the applicant with a medical certificate which stated ‘…the injury is now healed and the claim is now closed. This is an initial and final certificate’.

5. No review of that decision was sought until 7 August 2020. When the applicant sought review it was on the basis that (on her account) Dr Jayaweera was of the view the applicant sustained damage by way of a nerve impingement at C4 and C5 in the fall she suffered on 27 August 2018.

6. There was nothing in Dr Jayaweera’s report submitted with the claim which supported that contention.

7. On 1 September 2020 Comcare determined that it was not prepared to grant the necessary extension to allow the request for reconsideration to proceed to review. 

8. That decision, because it was made under section 62 of the SRC Act constitutes a reviewable decision. The applicant sought review of it on 14 September 2020. The decision is an exercise of the discretion in section 62(3) which is in entirely unqualified terms.

9. In considering whether to extend the time for making a request for review, it is usual to consider the explanation for delay, any prejudice to the respondent and whether the applicant has an arguable case. How much attention should be directed to assessing the merits of an applicant’s case is however a common question which arises.

10. When considering the assessment of the merits of the case in a similar statutory context, French J (as His Honour then was) observed in Seiler v Minister for Immigration, Local Government and Ethnic Affairs[24] that:

    ... To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed....It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it...

    [24] [1994] FCA 878; (1994) 48 FCR 83 at [29].

11. As to the required extent of investigation into the merits Katzmann J said in Actew AGL Distribution v Australian Energy Regulator[25] that:

    ... it is inappropriate for this purpose to fully investigate the merits, although an obvious strength or weakness in the applicant’s case is a factor for or against the exercise of the discretion...

    [25] [2011] FCA 639 at [111].

12. Further, Besanko J said in Hamden v Secretary, Department of Human Services[26]:

    As far as the merits of the substantive application are concerned, it is not for the Court to determine the application at this stage. However, an extension of time should not be granted if the substantive application is not reasonably arguable. Furthermore, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be a relevant consideration depending on the nature of the other factors (for example, the period of the delay and the explanation for it) relevant to the application for an extension of time

    [26] [2013] FCA 3 at [40].

13. In this case, because of the linking of the application relating to the claim for compensation in respect of the applicant’s neck and arm pain with the  extension of time relating to the fall, there has been an opportunity to examine thoroughly the merits of the applicant’s claim that the injury of August 2018 has had ongoing effects on the applicant.

14. With the benefit of the evidence given by two specialists including the applicant’s own treating specialist it is clear that the accident of August 2018 is not responsible for any deterioration in the applicant’s underlying constitutional condition. Dr Jayaweera was clear in his evidence that a fall of the kind that the applicant suffered is not the kind of injury that would lead to the deterioration in the applicant’s spine that is observable on scans. Her GP was correct to determine that the effects of the injury had resolved by 14 September 2018 and the claim appropriately closed. To the extent that her subsequent evidence departs from that view, I reject it.

15. Accordingly, there is no merit in the claim.

16. In relation to other relevant factors, I am satisfied that the applicant delayed seeking reconsideration because she did not think she had any grounds to do so until 2020. I am also satisfied that Comcare has suffered little if any prejudice as a consequence of the delay. However, in the unusual circumstance where there has been a full ventilation of the applicant’s medical claims and it is clear that there is no merit in them, I am satisfied that Comcare’s decision not to extend the time for requesting a reconsideration should be affirmed.

    Conclusion

17. As I am not satisfied that the applicant’s work duties caused the symptomatic aggravation of the applicant’s underlying cervical spondylosis, the decision in proceedings 2020/2114 should be affirmed.

18. As I am satisfied based on the medical evidence that the injuries the applicant suffered in her fall in August 2018 resolved soon after, her claim for further compensation in relation to those injuries cannot succeed. In those circumstances no additional period should be permitted to allow the applicant to request reconsideration. I affirm the decision the subject of proceedings 2020/5577. 

1.       I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

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

Associate

Dated: 16 August 2021

Date(s) of hearing: 

26 and 27 May 2021

Date final submissions received

21 July 2021

Applicant:

Self-represented

Counsel for Respondent:

Solicitors for the Respondent

Ms Anca Costin

McInnes Wilson Lawyers