Coghlan and Comcare (Compensation)

[2022] AATA 3101

Coghlan and Comcare (Compensation) [2022] AATA 3101 (8 August 2022)

Division:GENERAL DIVISION

File Number(s):      2020/7036

Re:Steven Wayne Coghlan

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Senior Member B J Illingworth

Date:8 August 2022

Date of written reasons:        23 September 2022

Place:Adelaide

For reasons given orally at the hearing, the Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.

The Tribunal, pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975, dismisses the application.

.................[SGND]............................................

Senior Member B J Illingworth

Catchwords

WORKERS’ COMPENSATION – Dismissal under s 42B(1) of the Administrative Appeals Tribunal Act 1975 – no reasonable prospects of success – Application for permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 – Application is dismissed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

Cases

Carvalho and Comcare [2022] AATA 1081

Oliver v Comcare (Compensation) [2018] AATA 1964

REASONS FOR DECISION

Senior Member B J Illingworth

23 September 2022

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed by Epiq. Some minor amendments have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

..............[Sgnd]...........................

Associate

Dated: 23 September 2022

Dates of hearing:	8 August 2022
Advocate for the Applicant:	Steven Coghlan, Self -represented
Advocate for the Respondent:	Peter Woulfe, Blackburn Chambers

ORAL DECISION OF SENIOR MEMBER ILLINGWORTH        [12.03 pm]

1. This is an application by the Applicant for a determination of permanent impairment and non-economic loss pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in relation to an accepted claim for aggravation of a medial meniscal tear to the right knee. The date of the injury was 21 March 2019.

2. The Applicant had a previously accepted claim in respect of an injury suffered 7 December 1998 to that same knee.  The Applicant then underwent arthroscopic surgery on 10 January 2000. A subsequent claim for permanent impairment and non-economic loss was successful and the Applicant was assessed with a whole of person impairment of 10 per cent.  The claim remained inactive until the Applicant’s injury of 21 March 2019.  This matter has been listed before me for a hearing commencing today for two days.

3. The Applicant has been on notice that the Respondent took issue with the failure of the Applicant’s treating orthopaedic surgeon to provide a completed Compensation Claim for Permanent Impairment and Non-economic Loss Form and Checklist.  Dr Samson was the Applicant’s treating orthopaedic surgeon who performed the arthroscopic surgery on the Applicant’s right knee on 24 July 2019. In his medical report dated 3 April 2020, he reported on the Applicant’s condition post-surgery which I will in part summarise as follows; Dr Samson reviewed the Applicant post-operatively initially on 5 August 2019 and thereafter, on 9 January 2020. In relation to that latter consultation, he reported, and I quote:

   ‘At that point, he reported that he was going well, was not taking any analgesia but did note the occasional clicking in his knee. He was certainly significantly better than pre-operatively and has been avoiding impact activities as per my recommendation.  He certainly did not feel that the knee was significantly impacting his quality of life and had not had any additional time off work.  He was walking as far as he could, his walking distance was not limited, there was no effusion in the knee and he had a full active stable range of motion, 0 degrees to 135 degrees.  He had very mild medial joint line tendonitis.’

4. In completing that ‘form and checklist’ to which I have referred, Dr Samson only provided a portion of that ‘form and checklist’, namely, part E which provided the treating practitioner’s details, and part B which provided for the treating practitioner’s diagnosis, confirmation that the condition is stable, and the answer to the following question namely;

   ‘Please describe the extent of the impairment(s) listed above. If possible, express this as a percentage of the affected body part, function or system and provide comments on how you determined the percentage.’

5. In response to the above question, Dr Samson wrote “15/20 % at maximum”.

6. I note that within Part C of the ‘form and checklist’, under heading ‘Non-Economic Loss Questionnaire’ are proforma questions going to the extent of the impairments listed, including pain, suffering, loss of amenities which included mobility, social relationships, recreational and leisure activities and other loss, which are a necessary part of the form to be completed by Dr Samson but are absent. Hence, there is no explanation from Dr Samson of the basis for the impairment assessment and the determination of the percentage opined.  

7. This is to be compared to the same form completed by Dr Nimon, who produced the completed form with each criteria assessed by the Applicant and by Dr Nimon which was a requirement for a satisfactory form to be completed.  Dr Nimon opined that 0 per cent of loss of whole of person impairment was appropriate but qualified that in a subsequent report dated 24 February 2022 when, having reviewed further material, and using AMA Guide V, he attributed 1 per cent whole of person impairment. 

8. The Applicant this morning confirmed that he was not calling any evidence from Dr Samson or any other expert witness. He wanted to cross examine Dr Nimon to raise what he perceived as a conflict of interest because Dr Nimon knows Dr Samson.  The Applicant maintains that Dr Nimon should have raised this when first instructed by the Respondent and disqualified himself, and that the Respondent should have engaged another orthopaedic surgeon.  As I said during the argument with the Applicant, that is not uncommon for two members of a medical profession to know each other. Each member of the profession, when providing reports are given information about how that report is to be completed and the expectations of that expert in completing the report.  I am satisfied that there is no merit in the suggestion of bias attributed to Dr Nimon in this matter. 

9. This morning, the Applicant said he was not calling Dr Samson and the Respondent could subpoena him if the Respondent wished to cross examine him. However, it is not for the Respondent to prosecute the Applicant’s case.  The Applicant has been well aware of the issue raised, in particular, the incomplete form and was on notice that that was fundamental to the Respondent’s position that the claim could not succeed.  The decision not to call Dr Samson was a decision the Applicant has made consciously, knowing this issue was a live one between the parties.

10. Given the Applicant confirming this morning that Dr Samson was not to give evidence, the Respondent has now made an application pursuant to section 42B(1) of the AAT Act for dismissal of the application. In particular, the Respondent says that the only evidence before the Tribunal which goes to the question of the Applicant’s permanent impairment and non-economic loss, is that of Dr Nimon. There is no satisfactory evidence before the Tribunal to explain the basis upon which Dr Samson opined 15/20%, nor is there any evidence to be produced this morning in relation to that assessment. The Respondent has referred the Tribunal to the case of Carvalho and Comcare [2022] AATA 1081, in which the Tribunal was required to consider a similar question about the sufficiency of the Applicant’s evidence presented before the Tribunal. I am referred to paragraphs 38, 39 and 40 in particular of that decision, which have been read onto the transcript during argument, and I will not repeat them.

11.  Counsel for the Respondent Mr Woulfe, draws my attention to a passage within paragraph 39 in reference to a case of Oliver[1], which stated:

[1] Oliver v Comcare (Compensation) [2018] AATA 1964.

‘…uncontradicted medical opinion from qualified experts denying a connection with employment would normally prove fatal to a claim of this kind, and an applicant’s self-assessment would rarely displace such opinion. So it is in this proceeding. Most relevantly, the Tribunal in Oliver stated that it is not required to elevate the possibility of strong evidence at a hearing in support of an applicant’s case to the level where they create the hope that a ‘conspicuously fragile case might acquire unexpected strength.’ This Tribunal finds these words apposite in this proceeding. The Tribunal must take the evidence as it is presented in making an assessment of whether an application has reasonable prospects of success. For the aforementioned reasons, the Tribunal is not satisfied that Ms Carvalho’s application has reasonable prospect of success.’

12.  I agree with Mr Woulfe that those comments made in that case are also apposite to the matter now before me, and that the only acceptable evidence before the Tribunal is that of Dr Nimon.  Accordingly, the Tribunal is not satisfied that the Applicant’s application has a reasonable prospect of success.

13. Dismissing an application under section 42B(1) should be used sparingly. But for the reasons I have now explained, I am satisfied that this is an appropriate matter in which to do so.

14. Accordingly, I order that pursuant to section 42B(1) of the AAT Act, the application before the Tribunal is dismissed.

END OF ORAL DECISION  [12.20 pm]