Chick and Comcare (Compensation) - [2021] AATA 37

Chick and Comcare (Compensation) [2021] AATA 37 (22 January 2021)
Division:GENERAL DIVISION
File Number(s): 2019/5725
Re:Dana Chick
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Ms L Rieper, Member
Date:22 January 2021
Place:Hobart

The Tribunal affirms the decision under review.
..................................[sgd]......................................
Ms L Rieper, Member
COMPENSATION – whether the Applicant suffered an injury or aggravation of disease – ceased liability for medical expenses and incapacity for work – whether Comcare is liable to pay compensation – Applicant found to suffer injuries – injuries found to be resolved prior to ceased liability – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Nichols [1999] FCA 209
Szajna v Australian Postal Corporation [2014] FCA 1136

REASONS FOR DECISION
Ms L Rieper, Member
22 January 2021
BACKGROUND

Until recently, Mrs Chick was employed by the Department of Immigration and Border Force on a full-time basis as an Australian Border Force officer. Her role prior to her injury required her to carry a weapon and to undertake an annual basic functional fitness assessment.
An incident report records that on 27 September 2017 Mrs Chick was undertaking a use of force recertification when her kneecap slipped across and back when she was kneeling in a defensive tactic. Ice was applied, her knee was taped, and it was continually iced that evening and retaped in the morning.
Mrs Chick submitted a claim for compensation on 7 December 2017. In the claim form, she noted that the knee had been recovering well with physiotherapy, but it had it flared up again a couple of weeks earlier after climbing a particularly challenging gangway and internal stairs on a vessel in port.
Mrs Chick’s claim for compensation was initially denied, but on 30 April 2019 Comcare accepted liability for both an injury to the patella-femoral joint of her right knee sustained on 26 September 2017 and for an aggravation of that injury suffered as the result of walking up a gangway in November 2017.
However, on 8 May 2019 all liability for medical expenses and incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) was ceased with effect from 29 January 2018.
That decision was reconsidered and on 2 September 2019 Comcare varied it and ceased liability under sections 16 and 19 of the SRC Act from 7 February 2018 rather than 29 January 2018.
It is that decision which Mrs Chick has asked the Tribunal to review.
ISSUES
Comcare is the workers’ compensation insurer for Commonwealth employees such as Mrs Chick. It is liable to pay compensation to injured workers in circumstances prescribed by the SRC Act.
The issue for the Tribunal to determine is whether Comcare has any liability for medical expenses and/or incapacity payments beyond 7 February 2018.
LEGISLATION
Section 14 of the SRC Act provides:
1Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an…

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) [2021] AATA 37
Case: [2021] AATA 37
Decision Date: 22 January 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Chick against a decision by Comcare to cease compensation payments. Mrs Chick had lodged a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) following an incident on 27 September 2017 during a defensive tactics recertification exercise, where she sustained a sudden, severe pain in her right knee. She later experienced further pain in her right knee in November 2017 while boarding a vessel. Comcare had accepted liability for these incidents, but subsequently ceased payments, leading to Mrs Chick's appeal to the Tribunal.

The Tribunal was required to determine whether Mrs Chick's incapacities for work and her medical expenses arising from the incidents of 27 September 2017 and November 2017 had resolved. This involved assessing whether the conditions for which she sought compensation constituted an "injury" within the meaning of the SRC Act, and whether any ongoing symptoms were attributable to those injuries or a pre-existing condition. The Tribunal also considered the onus of proof, noting that in compensation cases before it, there is no onus or burden of proof; rather, the Tribunal must satisfy itself of the relevant facts.

The Tribunal considered medical evidence, including reports from an orthopaedic surgeon, Dr Stanley-Clarke. Dr Stanley-Clarke opined that Mrs Chick's history was consistent with either a subluxation or dislocation of the right patella in September 2017, the symptoms of which had resolved. He also diagnosed early medial compartmental osteoarthritis of the right knee, exacerbated by the September and November 2017 incidents, but concluded that her ongoing symptoms were due to this pre-existing osteoarthritis. The Tribunal noted that the definition of "injury" under the SRC Act requires consideration of whether there was a sudden and ascertainable physiological change or disturbance, and whether this was distinct from an underlying pathology constituting a "disease".

Having found that both compensable injuries had resolved prior to 7 February 2018, the Tribunal affirmed Comcare's decision to cease compensation payments.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 19 of the SRC Act provides that Comcare is liable to pay compensation if an employee is incapacitated for work and provides a formula for the calculation of the payments.EVIDENCEMrs Chick Mrs Chick signed a statement on 11 September 2020 which was tendered in the proceedings.[1] She said that on 27 September 2017 she was participating in a Use of Force defensive tactics recertification. She was conducting a handcuffing technique on another person who was lying on the ground on their stomach with their hands behind their back. Mrs Chick was kneeling on her right knee, with her left knee bent at a 90-degree angle to support herself. She said the floor underneath her knee consisted of a thin, padded, mat-type covering. Whilst leaning forward and with her weight going through her right knee, she felt what she believed to be her kneecap popping across and sudden severe pain. She said that it felt like her kneecap moved back to its original position after approximately 30 seconds. In her evidence to the Tribunal, she added that she rolled onto her back and gave her knee a “whack” prior to the kneecap moving back. [1] Exhibit A3. Mrs Chick went on in her statement to say that she was assisted from the mat by a trainer and was seated with her leg elevated and an ice pack applied for approximately 20 minutes. She took anti-inflammatories and repeated the ice application. She had her knee taped and strapped and returned to the floor mat area with limited movement. That evening she continued applying ice and took more anti-inflammatories. In subsequent weeks, Mrs Chick undertook three sessions of physiotherapy. In her statement she said that her right knee continued to improve, and she was able to return to her normal duties. In oral evidence she said that her knee was not 100% but she was still able to work with it at that stage. On a date in November which Mrs Chick does not recall, she was boarding a vessel via a steep gangway. In her statement she said that when she reached the top of the gangway, she felt a sharp pain on the inside of her right knee. She continued with her duties and climbed stairs inside the superstructure of the vessel with difficulty and pain. She said that when she returned to her workplace, she advised her supervisor.Notes from Newstead Medical Centre Clinical notes from the Newstead Medical Centre are in evidence before the Tribunal. They date back to 1999. They show that Mrs Chick had complained of knee pain on several occasions in the years before her claim for compensation. A record of a consultation on 3 August 2015[2] includes a note that Mrs Chick had had lumbar back pain for more than two to three years and had intermittent swelling and/or pain in bilateral knee and shoulder joints. [2] Ibid, p 98. The Respondent submitted that Mrs Chick was referred to Dr Stewart Graham, rheumatologist, in December 2015 due to low back pain and stiffness and intermittent bilateral knee and shoulder pain and swelling. The Tribunal was unable to confirm this for itself from the evidence. There is a reference to a referral recorded in notes from an appointment on 8 December 2015[3] but the reasons for the referral are not evident.[3] T21, T documents at p 95.

Decision

Reasons for decision

Having found that both compensable injuries had resolved prior to 7 February 2018, it follows that the Tribunal must affirm the reviewable decision.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Comcare also obtained a report from Dr Stanley-Clarke, orthopaedic surgeon, dated 29 November 2018[20] after he examined Mrs Chick at Comcare’s request. He reported that Mrs Chick had advised that she had been completely asymptomatic and had no prior knee injuries either as an adolescent or an adult or ever sought medical attention for either knee. He reported that his examination of her patellofemoral joint was normal in that there was no patellar apprehension, it was stable, and the procedure was not painful. His view was that if she had any injury to the patellofemoral joint it had resolved. He opined that Mrs Chick’s history and progress to date was consistent with two diagnoses. He said that in September 2017 she sustained either a subluxation or dislocation of the right patella. The symptoms related to that had resolved and he said that was confirmed by the arthroscopy. The second diagnosis was early medial compartmental osteoarthritis of the right knee, exacerbated by the incident in September 2017 and further exacerbated in November 2017. The exacerbations had now ceased, and her ongoing symptoms were due to the pre-existing early medial compartmental osteoarthritis of the right knee. He described arthroscopic evaluation as the “gold standard” and noted that Dr Butorac had reported generalised chondromalacia affecting the medial joint compartment which would have pre-existed September 2017.CONSIDERATION[20] T28, T documents pp 144-154.Onus of proof Both parties addressed the question of the onus of proof in written submissions. It is well settled that there is no onus or burden of proof in compensation cases in this Tribunal. Rather, the Tribunal must satisfy itself of the relevant facts.[21] In a matter such as this, where liability for medical expenses and incapacity for work was accepted but has now ceased, the Tribunal must satisfy itself as to whether or not the evidence supports such a finding. [21] See for example: Comcare v Nichols [1999] FCA 209 at [22] and [23].Injury or disease Mrs Chick contends that she suffered an injury simpliciter, the effects of which continue. Comcare disagrees. A useful summary of what must be considered in such a case was set out by Rangiah J in Szajna v Australian Postal Corporation [2014] FCA 1136 at [76]:What the cases establish is that:(a) In order to decide whether an employee has sustained an “injury” within the meaning of that word, consideration must be given to the precise evidence on a case by case basis.(b) If the evidence establishes something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify as such an “injury”.(c) It is necessary to consider whether the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly cause the sudden change to occur.(d) The question of whether the physiological change or disturbance is the inevitable consequence of the progress of the disease may be relevant in deciding whether there is an “injury”, but it is not itself necessarily determinative.