Chick and Comcare (Compensation) - [2023] AATA 1969

Chick and Comcare (Compensation) [2023] AATA 1969 (5 July 2023)
Division:GENERAL DIVISION
File Number(s): 2019/5725
Re:Dana Chick
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom Senior Member
Date:5 July 2023
Place:Hobart

The reviewable decision dated 2 September 2019 is set aside and in substitution the Tribunal makes the following decision:
(a)The applicant suffers from a right knee injury and subsequent aggravation causing symptomatic exacerbation of early medial compartmental osteoarthritis as a result of the incidents occurring at her work on 26 September 2017 and November 2017.
(b)From the date of the injury to the present date the applicant requires reasonable medical treatment in respect of the injury for the purpose of section 16 of the Act.
(c)From the date of the injury to the present date the applicant suffers incapacity for work as a result of the injury for the purpose of section 19 of the Act.
(d)From the date of the injury to the present date the respondent must pay to the applicant:
(i)the costs of all reasonable medical and related treatment expenses incurred in respect of injury pursuant to section 16 of the Act.
(ii)weekly payments of compensation in respect of incapacity for work for all periods pursuant to section 19 of the Act.

(e)The respondent must pay the applicant's reasonable costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.

...[sgn].....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
Workers Compensation (Cth) - Right knee partial dislocation injury - Early medial compartmental osteoarthritis – Whether injury arose out of or during the course of employment – Previously accepted injury – Whether employment was a significant contributing factor – Decision under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Bromham and Comcare (Compensation) [2017] AATA 1515
Canute v Comcare (2006) 226 CLR 535
Comcare v Nichols [1999] FCA 209 at
Commonwealth v Borg (1991) 20 AAR 299
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Zdziarski v Telstra Corporation Limited [2015] FCA 207
REASONS FOR DECISION
The Hon. Matthew Groom Senior Member
INTRODUCTION

This matter involves an application for review of a decision of a review officer of the respondent dated 2 September 2019 (reviewable decision) which varied an earlier decision of a delegate of the respondent dated 8 May 2019 (original decision). The original decision determined that as at 29 January 2018 the respondent ceased liability of medical expenses and incapacity payments in respect of the applicant’s previously accepted injury to the patellofemoral joint of the applicant’s right knee and an aggravation of the injury under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Act) (SRC Act). The reviewable decision varied that decision by finding that the respondent’s liability ceased as at 7 February 2018.
BACKGROUND
The applicant commenced her employment with the Department of Home Affairs in 2005. She worked as an APS3 Australian Border Force Officer.
On 7 December 2017 the applicant lodged…

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 Chick and Comcare (Compensation)

Details

AGLC: Chick and Comcare (Compensation) [2023] AATA 1969
Case: [2023] AATA 1969
Decision Date: 5 July 2023

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) concerning a decision by Comcare to cease liability for compensation payments to the applicant, Ms Chick. The applicant had previously accepted claims for an injury to the patellofemoral joint of her right knee, sustained in September 2017, and an aggravation of that injury from walking up a gangway in November 2017. Comcare's decision to cease liability was based on an MRI scan from January 2018, which it contended showed no ongoing injury to the patellofemoral joint and indicated that any ongoing pain was attributable to pre-existing, non-compensable conditions. The applicant argued that the incidents had caused a consequential exacerbation of pre-existing medial compartment osteoarthritis in her right knee, which continued to cause her incapacity for work.

The Tribunal was required to determine whether Comcare's decision to cease liability for compensation was the correct or preferable decision on the evidence. Specifically, the Tribunal needed to assess whether the applicant's ongoing symptoms were attributable to the previously accepted injury or its consequences, or to other non-compensable conditions. The Tribunal also considered the evidentiary burden on Comcare when reviewing a decision to cease compensation for a previously accepted injury.

The Tribunal applied the principle that in reviewing a decision to cease liability for a previously accepted injury, it must be satisfied on the balance of probabilities that the decision to cease liability is correct or preferable. While neither party bears a formal onus of proof, Comcare has an evidentiary burden to discharge if its decision is to be affirmed. The Tribunal noted that the applicant did not dispute that the specific damage to the patellofemoral joint was no longer evident in the January 2018 MRI. However, the Tribunal considered the applicant's contention that the exacerbation of her medial compartment osteoarthritis, a consequential effect of the accepted injury, persisted and resulted in her ongoing incapacity.

The Tribunal set aside the decision under review and substituted its own decision. The Tribunal found that the applicant had not discharged the evidentiary burden to demonstrate that the respondent's decision to cease liability was the correct or preferable decision. Consequently, the Tribunal affirmed Comcare's decision to cease liability for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

This matter involves an application for review of a decision of a review officer of the respondent dated 2 September 2019 (reviewable decision) which varied an earlier decision of a delegate of the respondent dated 8 May 2019 (original decision). The original decision determined that as at 29 January 2018 the respondent ceased liability of medical expenses and incapacity payments in respect of the applicant’s previously accepted injury to the patellofemoral joint of the applicant’s right knee and an aggravation of the injury under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Act) (SRC Act). The reviewable decision varied that decision by finding that the respondent’s liability ceased as at 7 February 2018. BACKGROUND The applicant commenced her employment with the Department of Home Affairs in 2005. She worked as an APS3 Australian Border Force Officer. On 7 December 2017 the applicant lodged a claim for compensation in respect of an injury to her right knee which she claimed occurred on 26 September 2017 while participating in a use of force training course. The applicant’s claim was initially declined however the respondent undertook an “own motion” reconsideration of her claim. On 30 April 2019 the respondent accepted the applicant’s claim for an injury to the patellofemoral joint of her right knee as a consequence of the incident occurring on 26 September 2017. The respondent also accepted a further claim by the applicant for an aggravation of the same injury as a result of walking up the gangway in November 2017. On 8 May 2019 the respondent determined that it had no present liability to pay compensation to the applicant for medical expenses or incapacity in respect of the previously accepted injury. The basis for the determination was the outcome of an MRI on 29 January 2018 which the respondent claims demonstrated a pre-existing problem in the medial compartment of the applicant’s right knee and that there was no specific injury to the patellofemoral joint as previously claimed. On 27 May 2019 a request was made for the respondent to re-consider the determination. On 2 September 2019 a senior review officer of the respondent decided to vary the 8 May 2019 decision by finding that the applicant has no present entitlement to either medical treatment or incapacity payments as at 7 February 2018 rather than 29 January 2018. On 10 September 2019 application was made for a review of the decision by the Administrative Appeals Tribunal (AAT). On 22 January 2021 the Tribunal, differently constituted, decided to affirm the 2 September 2019 decision. An application was subsequently made to the Federal Court to overturn the decision of the Tribunal on appeal. On 26 August 2021 the Federal Court ordered by consent that the decision of the Tribunal of 22 January 2021 be set aside and remitted back to the AAT for determination. That is the matter presently before this Tribunal. The parties have consented to the Tribunal determining the matter on the basis of the evidence previously heard. A hearing was held on 27 January 2022 to hear oral submissions from the parties in respect of the matter. The applicant was represented by Mr Hilliard of counsel. The respondent was represented by Mr Wallace of counsel.

Ratio Decidendi

Legal Principle Established

The Tribunal accepts that in a matter such as this it would be erroneous to describe either party as bearing an onus of proof in respect of any issues for determination. The task for the Tribunal is to reach a level of satisfaction in respect of the issues based on the evidence before it. The Tribunal does, however, accept that in a review of a decision to cease liability for compensation under the Act in respect of a previously accepted injury, it must not affirm the decision unless satisfied, on the balance of probabilities, that the decision to cease liability is the correct or preferable decision on the evidence before it. As noted in the applicant’s written submissions, the case of Bromham and Comcare (Compensation) [2017] AATA 1515 aptly describes the position on this issue: [1]When the matter was first argued before us it was put on behalf of Comcare that “there is insufficient evidence to establish that the compensable condition continues to contribute to Ms Bromham’s psychological condition if she suffers from one”. We do not agree that this is the correct approach to the task before us. Ms Bromham does not have to again show that Comcare is liable to compensate her in respect of the injury she suffered in 2005. Whilst neither party bears an onus of proof, there is an evidentiary burden on Comcare which must be discharged if the decision under review is to be affirmed. For this to occur we have to be satisfied on the evidence before us that, on the balance of probabilities, Ms Bromham does not suffer at present from the effects of the compensable injury and has not done so since 9 December 2014. If we cannot be so satisfied the reviewable decision must be set aside.[1] See also Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 at 525; Commonwealth v Borg (1991) 20 AAR 299 at 370; and Comcare v Nichols [1999] FCA 209 at [22].CONSIDERATION The respondent contends that liability for compensation in respect of the applicant’s previously accepted injury to the patellofemoral joint of the applicant’s right knee and an aggravation of the injury under section 16 and 19 of the Act had ceased as at 7 February 2018. It bases that conclusion on the January 2018 MRI evidencing no ongoing presence of an injury to the patellofemoral joint of the applicant’s right knee. The respondent contends that to the extent the applicant is continuing to experience ongoing pain symptoms, they are attributable to other non-compensable conditions. The applicant contends that the injury that occurred as a consequence of the two incidents in September and November 2017 involved two consequential effects, the first being the damage to the patellofemoral joint of the applicant’s right knee and the second being an exacerbation of pre-existing medial compartment osteoarthritis condition. The applicant does not specifically dispute that the damage to the patellofemoral joint was no longer evident in the January 2018 MRI. However, she contends that the claimed second causal effect, namely, the exacerbation to the medial compartment osteoarthritis, continues to persist and that it results in her ongoing incapacity for work. On that basis, the applicant contends that the respondent’s liability in respect of her injury continues.