Chu Yu Chee and Comcare (Compensation) - [2018] AATA 1241

Chu Yu Chee and Comcare (Compensation) [2018] AATA 1241 (3 May 2018)
Division:GENERAL DIVISION
File Number: 2017/1533
Re:Men Soon Chu Yu Chee
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Senior Member Dr M Evans
Date:3 May 2018
Place:Perth

The decision under review is affirmed.
.....[sgd]...................................................................
Deputy President S Boyle
CATCHWORDS
COMPENSATION – Commonwealth employee – sprain of shoulder and upper arm – accepted conditions – whether applicant continues to suffer from the effects of the injury – whether applicant presently entitled to medical expenses or incapacity payments – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A(b) and (c), s 25(1), s 29(2)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, s 5A(1), s 5B(1), s 5B(1)(a), s 5B(1)(b), s 5B(2), s 5B(3), s 7(4), s 14, s 14(1), s 16, s 16(1), s 19, s 60(1), s 62(1), s 62(2), s 62(4), s 62(5), s 64(1), s 65(4)
Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)
CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare v Power (2015) 238 FCR 1187; [2015] FCA 1502
Comcare v Reardon (2015) 148 ALD 356; [2015] FCA 1166
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369
Reardon and Comcare [2015] AATA 360
Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886
Re Winsall and Comcare (2003) 72 ALD 696
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
REASONS FOR DECISION
Deputy President S Boyle
Senior Member Dr M Evans
3 May 2018
THE APPLICATION

On 26 September 2014, the Applicant made a claim for workers’ compensation for “a painful left shoulder abduction” (Page 4 of Claim for Workers’ Compensation form contained in Exhibit R1, page 11).
On 24 November 2014, the Respondent made a determination under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) accepting liability for the Applicant’s claim for the injury of “sprain of shoulder & upper arm (left)”. The date of injury was stated as 21 May 2014, being the date that the Applicant first sought medical treatment. The determination further stated that, “Reasonable medical treatment claims resulting from this injury have been accepted up to and including 18 November 2014” (Letter from Comcare to the Applicant dated 24 November 2014 contained in Exhibit R1, page 80).
On 29 September 2015, the Respondent wrote to the Applicant to inform him that it would no longer accept liability for “a continued exercise program and gym membership” because such treatment did not meet the criteria for medical treatment under s 16(1) of the SRC Act (Exhibit R1, page 95).
On 15 December 2016, an authorised delegate of the…

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.

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Details

Case: [2018] AATA 1241
Decision Date: 3 May 2018

CaseChat Overview and Summary

This matter concerned an application by Chu Yu Chee to the Administrative Appeals Tribunal (AAT) for a review of a decision made by Comcare. The dispute centred on whether the applicant continued to suffer from the effects of an accepted injury, specifically a sprain of his shoulder and upper arm, and whether he was presently entitled to medical expenses or incapacity payments. The applicant, a long-term employee of the Department of Human Services, had a pre-existing history of lower back pain and reported experiencing severe pain in his left arm, which he attributed to the use of a computer mouse.

The AAT was required to determine whether the applicant had suffered an "injury" within the meaning of section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This involved considering whether the applicant's condition constituted a "disease" or an "injury (other than a disease)" as defined by the Act, and whether such ailment or injury was contributed to, to a significant degree, by his employment. The Tribunal also had to assess the applicant's ongoing entitlement to compensation for medical expenses and incapacity payments.

In its reasoning, the Tribunal considered the oral and written submissions of the parties, as well as the evidence presented, including expert medical testimony from Dr Liddell and Dr du Plessis. The Tribunal found both medical experts to be honest and impartial, and it addressed the applicant's concerns regarding the independence of the experts and the method of Dr du Plessis's evidence. The Tribunal's decision affirmed the Reviewable Decision, indicating that it was not satisfied that the applicant continued to suffer from the effects of the accepted injury to the extent that would warrant further medical expenses or incapacity payments.

Orders

Orders of the court

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Background

Background to the litigation

On 16 March 2017 the Applicant made an application to the Administrative Appeals Tribunal to review the Reviewable Decision (Exhibit R1, T1). BACKGROUND The Applicant is a 55 year old man. He commenced employment with the Department of Human Services (DHS) on 8 February 1993. He is right-hand dominant. The Applicant has a history of back pain dating back to approximately 2008. An ergonomic workstation assessment by Recovre dated 16 May 2014 noted that “Mr Chu Yu Chee reported a 5 year history of lower back pain due to a herniated disc. He stated that he independently managed this pain through exercise and regular postural variation” (Exhibit R2, page 13). An ergonomic workstation assessment from People Sense (Exhibit R1, page 40) also noted the Applicant injured his lower back in 2008 and that he undertook “daily maintenance exercises to manage symptoms relating to this injury”. The Applicant reported that on 7 May 2014 he woke up with severe pain in his left arm which he was “unable to lift normally”. He attributed this pain to “left hand use of computer mouse” (DHS Report of Incident or Injury, Exhibit R1, page 44). At this time the Applicant was employed as a Customer Service Officer by DHS. DHS organised for the ergonomic workstation assessment of the Applicant’s workstation to be undertaken by Recovre. The ergonomic workstation assessment stated that “the monitors were appropriately positioned for their intended use” and that there were no identified problems with desk height, or the positioning of the Applicant’s phone or keyboard (see ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 34). The ergonomic workstation assessment stated that the computer monitors were lowered from 59.5cm to 58cm, and that a 57cm height had been recommended, however the Applicant “felt he had to flex his neck excessively to view the screens at this height”. The assessment further stated that, “For the purpose of minimising sustained right cervical rotation, Mr Chu Yu Chee was encouraged to complete as many tasks as possible on his primary monitor, and to use the secondary monitor only when referring to documents, wherever possible” (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 35-36). The assessment also recommended the use of a “Contour Roller Mouse” which “may be used with both hands or the left or right only and is situated along the keyboard line, enabling neutral upper limb position” (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 36). Under the heading “Breaks and exercise” in the column “possible areas of concern” the assessment (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 36) stated: Mr Chu Yu Chee demonstrated a cervical extension exercise to The Recovre Group at the time of the assessment. It involved standing, tilting the head back and the [sic] pushing the head into a wall behind him. The exercise is likely to place excessive pressure on the spine and cause increased tension and overactivity of the upper trapezius muscles.The first recommendation under this heading was: “Mr Chu Yu Chee was strongly encouraged to cease the described cervical extension exercise, immediately”.

Evidence

Evidence Before The Court

The Tribunal has considered the parties oral and written submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. EXPERT EVIDENCE Dr Liddell gave evidence in person at the hearing. Dr du Plessis gave evidence by telephone from New Zealand. The Applicant expressed concern that he was not able to cross-examine Dr du Plessis in person. It is regular practice in the Tribunal for medical experts to give evidence via telephone, particularly if the doctor is interstate or, in this case, overseas. In this regard, the Tribunal notes the objectives of the Tribunal under ss 2A(b) and (c) of the AAT Act relating to economy and proportionality. The Applicant was not disadvantaged because he was able to cross-examine Dr du Plessis by phone. The Applicant also expressed concerns about the independence of Dr du Plessis in particular, and also Dr Liddell. This was on the basis of the volume of independent medical assessments that Dr du Plessis and Dr Liddell were perceived by the Applicant to undertake on behalf of insurance companies. In his oral evidence before the Tribunal, Dr du Plessis explained the process by which he is referred medical assessment work. Dr du Plessis explained to the Tribunal that he does not have direct contact with insurance companies, including Allianz. Instead, referrals are made through Medico Legal Consultants of Australia (MLCOA) which acts as a type of clearing house for medical experts dependent on the area of expertise required. Dr du Plessis gave evidence that he advises MLCOA of his availability, and they refer cases to him based on his area of expertise. Dr du Plessis told the Tribunal that he does not know who the parties are until he opens a case file. He stated that it did not matter to him who had sought the expert report because his objective is to give an honest medical opinion that will stand up to peer-review. The Tribunal also notes that Dr du Plessis stated the following at the conclusion of his report of 2 November 2016 (Exhibit R1, page 131), “I acknowledge that I have read the Expert Witness Code of Conduct and agree to be bound by it”, and “[t]he contents of this report are true to the best of my knowledge and belief.” The Tribunal found Dr du Plessis and Dr Liddell to be honest and impartial expert medical witnesses. DID THE APPLICANT SUFFER AN INJURY WITHIN THE MEANING OF S 14 OF THE SRC ACT? Did the Applicant suffer from a “disease” or an “injury (other than a disease)”? Comcare is liable to pay compensation to an applicant under s 14 of the SRC Act, if the applicant suffered an “injury” within the meaning of s 5A(1) of the SRC Act. An “injury” under s 5A(1) includes a “disease” (s 5A(1)(a) of the SRC Act) and an “injury (other than a disease)” (s 5A(1)(b) of the SRC Act) suffered by the employee. Section 5B(1) of the SRC Act defines a “disease” as an “ailment suffered by an employee” (s 5B(1)(a) of the SRC Act) or an “aggravation of such an ailment” (s 5B(1)(b) of the SRC Act), both of which must be “contributed to, to a significant degree, by the employee’s employment”.

Decision

Reasons for decision

On 19 January 2017, an authorised delegate of the Respondent reconsidered the determination of 15 December 2016 under s 62(4) of the SRC Act. The authorised delegate then affirmed the determination under s 62(5) of the SRC Act (the Reviewable Decision) (Exhibit R1, T27). On 16 March 2017 the Applicant made an application to the Administrative Appeals Tribunal to review the Reviewable Decision (Exhibit R1, T1). BACKGROUND The Applicant is a 55 year old man. He commenced employment with the Department of Human Services (DHS) on 8 February 1993. He is right-hand dominant. The Applicant has a history of back pain dating back to approximately 2008. An ergonomic workstation assessment by Recovre dated 16 May 2014 noted that “Mr Chu Yu Chee reported a 5 year history of lower back pain due to a herniated disc. He stated that he independently managed this pain through exercise and regular postural variation” (Exhibit R2, page 13). An ergonomic workstation assessment from People Sense (Exhibit R1, page 40) also noted the Applicant injured his lower back in 2008 and that he undertook “daily maintenance exercises to manage symptoms relating to this injury”. The Applicant reported that on 7 May 2014 he woke up with severe pain in his left arm which he was “unable to lift normally”. He attributed this pain to “left hand use of computer mouse” (DHS Report of Incident or Injury, Exhibit R1, page 44). At this time the Applicant was employed as a Customer Service Officer by DHS. DHS organised for the ergonomic workstation assessment of the Applicant’s workstation to be undertaken by Recovre. The ergonomic workstation assessment stated that “the monitors were appropriately positioned for their intended use” and that there were no identified problems with desk height, or the positioning of the Applicant’s phone or keyboard (see ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 34). The ergonomic workstation assessment stated that the computer monitors were lowered from 59.5cm to 58cm, and that a 57cm height had been recommended, however the Applicant “felt he had to flex his neck excessively to view the screens at this height”. The assessment further stated that, “For the purpose of minimising sustained right cervical rotation, Mr Chu Yu Chee was encouraged to complete as many tasks as possible on his primary monitor, and to use the secondary monitor only when referring to documents, wherever possible” (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 35-36). The assessment also recommended the use of a “Contour Roller Mouse” which “may be used with both hands or the left or right only and is situated along the keyboard line, enabling neutral upper limb position” (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 36). Under the heading “Breaks and exercise” in the column “possible areas of concern” the assessment (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 36) stated: Mr Chu Yu Chee demonstrated a cervical extension exercise to The Recovre Group at the time of the assessment. It involved standing, tilting the head back and the [sic] pushing the head into a wall behind him. The exercise is likely to place excessive pressure on the spine and cause increased tension and overactivity of the upper trapezius muscles.The first recommendation under this heading was: “Mr Chu Yu Chee was strongly encouraged to cease the described cervical extension exercise, immediately”.

Ratio Decidendi

Legal Principle Established

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