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

The applicant is seeking a review of two decisions.
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).
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
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]
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…

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 Chambers and Comcare (Compensation)

Details

AGLC: Chambers and Comcare (Compensation) [2021] AATA 2870
Case: [2021] AATA 2870
Decision Date: 16 August 2021

CaseChat Overview and Summary

This matter concerned an application by the applicant to review a decision by Comcare to refuse an extension of time to seek review of an earlier determination. The original determination, made by consent in September 2018 by the Administrative Appeals Tribunal, found that the applicant had suffered an aggravation of a pre-existing cervical degenerative disease, which was deemed to have been sustained on 1 December 2015 and resolved by 30 November 2017. The applicant subsequently suffered an injury in a fall on 27 August 2018, which Comcare accepted liability for and determined had resolved by 19 October 2018. The applicant sought review of this latter decision almost two years later, on 7 August 2020. The Tribunal, presided over by Damien O’Donovan SM, was required to determine whether to grant an extension of time for the applicant to seek review of Comcare's decision.

The central legal issues before the Tribunal were whether the applicant had suffered a work-related injury or aggravation of an underlying condition that warranted further compensation, and consequently, whether it was appropriate to grant an extension of time for the applicant to pursue her claim. The Tribunal considered the applicant's claim that her employment duties had caused or significantly contributed to the aggravation of her underlying cervical degenerative condition, particularly in light of the fall in August 2018. It also had to assess the applicant's explanation for the significant delay in seeking review of Comcare's decision.

The Tribunal reasoned that while the applicant had an underlying cervical degenerative disease, the medical evidence indicated that the injuries sustained in the August 2018 fall had resolved by November 2018. Furthermore, the Tribunal was not satisfied, based on the evidence, that the applicant's work duties had caused or significantly contributed to any symptomatic aggravation of her underlying condition after that date. Given that the underlying claim was considered to have no merit, the Tribunal concluded that it would not be appropriate to grant an extension of time to seek review, despite acknowledging that Comcare had suffered little prejudice from the delay and that the applicant's delay was partly due to her belief that she had no grounds for review.

Consequently, the Tribunal affirmed Comcare's decision not to extend the time for requesting a reconsideration. The Tribunal affirmed the decision in proceedings 2020/2114, finding that the applicant's work duties did not cause the symptomatic aggravation of her underlying cervical spondylosis. As the medical evidence indicated the injuries from the August 2018 fall had resolved soon after, her claim for further compensation in relation to those injuries could not succeed, and therefore no additional period was permitted for the applicant to request reconsideration. The decision subject to proceedings 2020/5577 was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 The matter was heard on 26 and 27 May 2021. I received oral evidence from:(a)The Applicant;(b)Dr Ambreen Ali;(c)Dr Tony Kostos; and(d)Dr Suren Jayaweera. 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. 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 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. 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.

Decision

Reasons for decision

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 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. 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.

Ratio Decidendi

Legal Principle Established

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