Crick and Comcare (Compensation)

Case [2020] AATA 4483

Crick and Comcare (Compensation) [2020] AATA 4483 (9 November 2020)

Division:GENERAL DIVISION

File Number:          2017/2767

Re:Cheryl Crick  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:9 November 2020

Place:Brisbane

I affirm the decision under review.

.........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – determination that Comcare no longer liable to pay compensation to the employee for accepted injuries under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – lumbosacral (joint) (ligament) sprain of unspecified site of hip & thigh (right) – aggravation of displacement of intervertebral disc-lumbar – aggravation of disc degeneration L4-L5/L5-S1 (bilateral) – adjustment disorder with mixed anxiety and depression – whether applicant continues to suffer the effects of the compensable injuries – whether injury, being a disease, continues to be contributed to, to a significant degree, by employment – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Public Service Act 1999 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)

CASES

Bushell v Repatriation Commission (1992) 175 CLR 408
Clavero and Australian Postal Corporation [2020] AATA 4167
Comcare v Laidlaw (1999) 89 FCR 141; [1999] FCA 40
Comcare v Porter (1996) 70 FCR 139
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Commonwealth of Australia v (K C) Smith (1989) 18 ALD 224 (Federal Court of Australia)
Commonwealth of Australia v Ford (1985) 9 ALD 433 (Federal Court of Australia)
Cranswick and Repatriation Commission (1988) 15 ALD 459
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Dunkerley and Comcare [2014] AATA 381
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Hollis and Comcare [2017] AATA 49
Hollis v Comcare (2017) 154 ALD 54; [2017] FCA 558
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Kavas and Comcare (2011) 130 ALD 104; [2011] AATA 935
Lindeman Ltd v Colvin (1946) 74 CLR 313; [1946] HCA 35
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522
Martin v Australian Postal Corp (1999) 29 AAR 420; [1999] FCA 655
McAuliffe v Comcare [2002] FCA 769
Perkins and Comcare [2018] AATA 3010

Scheuler and Australian National Railways Commission (1988) 14 ALD 518 (Administrative Appeals Tribunal)
Smedley and Repatriation Commission (1988) 16 ALD 574 (Administrative Appeals Tribunal)
Taylor and Comcare [2017] AATA 1327
Telstra Corp Ltd v Hannaford (2006) 151 FCR 253; [2006] FCAFC 87
Vasios and Australian Postal Corporation [2015] AATA 317

SECONDARY MATERIALS

Sutherland, P and J Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (2014, 10th ed) The Federation Press

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

9 November 2020

INTRODUCTION

  1. This is an application for the review of a determination by Comcare on 28 April 2017 to affirm an earlier determination dated 8 March 2017 that it was no longer liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”)  to Ms Cheryl…

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AGLC
Crick and Comcare (Compensation) [2020] AATA 4483
Case
[2020] AATA 4483
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Cheryl Crick against a determination by Comcare that it was no longer liable to pay compensation for accepted injuries under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The accepted injuries included a lumbosacral sprain, aggravation of a disc displacement and disc degeneration in the lumbar spine, and an adjustment disorder with mixed anxiety and depression. The Administrative Appeals Tribunal was required to determine whether Ms Crick continued to suffer the effects of these compensable injuries and, in relation to any disease injury, whether it continued to be contributed to, to a significant degree, by her employment.

The Tribunal considered extensive documentary and witness evidence. Ms Crick provided a detailed statement outlining her medical history, including various incidents and treatments, and her current physical and psychological condition. She attributed ongoing pain and mobility issues to complications from surgeries and the accepted injuries, and stated that the cessation of compensation had caused her significant hardship. Lay witnesses, including family members and a work colleague, testified that Ms Crick's life had changed significantly following the 2008 workplace injury, with one son observing her using a walking stick and strong pain medication.

The Tribunal noted that the respondent, Comcare, sought to rely on the decision in *Telstra Corp Ltd v Hannaford* to argue that new evidence allowed the Tribunal to reconsider previous findings. However, the Tribunal found it unfair to raise this contention after the hearing, particularly given the statutory direction for the Tribunal to provide a fair mechanism of review. The Tribunal also considered the medical evidence and concluded that there was no cogent evidence that Ms Crick continued to suffer from the previously accepted psychiatric condition.

Ultimately, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is considerable documentary evidence before the Tribunal in this application including more than one thousand pages in the T-Documents, along with several hundred pages of exhibits. I have considered all of the documentation that is in evidence as well as the evidence given by the witnesses.Evidence of the applicantStatement of Cheryl Crick dated 21 August 2019 The applicant provided a detailed, twenty-two page statement dated 21 August 2019 which was tendered in evidence during the hearing.[17][17] Exhibit F. The applicant gave a detailed account regarding: (a)The 2008 fall incident; (b)The treatment that she had undertaken for her lower back and thigh symptoms including medication, injections, surgery, and pain management;(c)Her experience of the assessment process for invalidity retirement;(d)The notice of termination that she received in January 2014 and the psychological symptoms she suffered as a result;(e)Her current situation including her medical condition, relationship with the ATO and her living arrangements;(f)Her mental state; and(g)Her response to the surveillance footage.[18][18] Exhibits P and Q. In her statement, the applicant remarked that:(a)She did not recall any previous work-related injuries apart from the medial nerve injury in 1990/1991, however, following the provision of documents held by WorkCover Queensland, her memory was prompted of having sustained upper-back and calf muscle injuries while working as a laundry attendant in the early nineties;(b)She sustained an injury in December 2004 when she slipped on a wet floor while working for the Commonwealth, the effects of which continued until about 2006, however, she did not make a claim for compensation in respect of that injury;(c)She was involved in a motor vehicle accident in December 2006 in which she sustained injuries to her cervical spine (whiplash), bruised ankles, left rotator cuff (shoulder) and “mild” irritation of her existing lumbar sacroiliac injury;(d)She continued to suffer “occasional twinges” from 2007 onwards in her right lumbar-sacroiliac region which were not severe enough to require analgesia; (e)She sustained an injury on 27 February 2009 while travelling by bus between ATO offices which caused an exacerbation of her lower back pain symptoms until about 20 March 2009. I have earlier mentioned that liability for this injury was accepted by the Respondent until June 2009. This was her second claim for compensation under the Act;(f)Following the bus-travel incident she stated that “it was difficult to determine whether the ongoing pain and mobility issues related to the injury incurred in June 2008 or the exacerbation in February 2009. As a result, Comcare advised me that they were going to manage everything under claim number [1]”;(g)She suffered a traction injury to the nerves of her left leg following surgery in 2011, along with significant scarring due to the movement of the cage during that surgery which required further surgery in late 2012;(h)She has pain and mobility issues affecting both legs and her lower back which she attributes to the complications from the surgeries;(i)She made a third claim for compensation in respect of a psychiatric injury she suffered following the notice of termination of her employment with the ATO in 2014;(j)She disagreed with the assessment of Dr Shaikh that there was a relationship between the complications from her surgery and the onset of her psychological symptoms;(k)Her resolve to return to work was bolstered by a Ketamine infusion treatment that she undertook in October 2015;(l)The cessation of compensation has taken a toll on her both physically and mentally and caused her to suffer severe financial hardship;(m)She received an email from the ATO on 20 August 2019 notifying her that her employment had again been terminated;(n)She and her husband moved back to Brisbane in August 2018 and have not used their caravan since returning;(o)She has worn an ankle foot orthosis since 2012 “due to ongoing issues resulting from nerve damage incurred during the surgery in 2011” which has recently broken. Due to financial constraints, however, she has resorted to using temporary orthotics and cannot afford to replace her ankle foot orthosis;(p)She continues to suffer pain and mobility issues originating in her sacroiliac joint which restrict her capacity to undertake activities of daily living and give rise to the need for supports, medical implements, and medication;(q)She has suffered from psychiatric symptoms since 2014;(r)While she is able to go on long trips in a car, she can only do so as a passenger;(s)She is a singer who has performed in rock and blues bands, however, over time she required more and more “concessions” on stage such as sitting on a stool for part of the performance. The frequency of her performances tapered off after the 2008 fall. She stated that she was due to perform in March 2017 but she had to cancel as “it had become too hard”. She has not performed since August 2016 and her bandmates have formed a new band without her;(t)She suffers from a number of other health complications;(u)When she goes fishing, she no longer performs fishing activities, but rather, she watches others who are fishing;(v)Prior to the 2008 fall, she used to walk every day and occasionally went hiking. Now however, climbing stairs can cause her to suffer increased pain for days;(w)She considered that the moments of her life that were captured within the surveillance commissioned by the respondent[19] were atypical, and in fact, the surveillance footage showed the difficulties she faces in everyday life. The applicant remarked that the surveillance footage often omitted recordings of events immediately after those shown where she undertook certain activities which were important for understanding their context, including for example, footage of a ten minute rest she took after climbing the stairs at Jacob’s Ladder; and(x)The respondent tendered footage of the applicant performing on stage in 2010 which the respondent referred to as “Crick – September 2012”. The applicant submitted that the respondent had erroneously titled that video and it was uploaded to YouTube in 2010 and was filmed at a time when her capacity was not as impacted by her conditions.[19] Exhibits P and Q.Lay witness statements

Decision

Reasons for decision

I am of the opinion that there is no cogent evidence that the applicant continues to suffer from the earlier accepted psychiatric condition.DECISION I affirm the decision under review

Ratio Decidendi

Legal Principle Established

The applicant contended that the respondent’s submission that the applicant worked unabated and without issue after the 2008 fall injury is not supported by the evidence.CONSIDERATION Hannaford The respondent accepted liability for each of the three surgical procedures undergone by the applicant. The respondent has submitted, in reliance on the decision of the Full Federal Court in Telstra Corp Ltd v Hannaford,[85] that the Tribunal in the light of new evidence becoming available, is empowered "to undercut" the necessary findings of fact made in the original determinations. The respondent further submitted that the medical evidence which is now available indicates that those surgeries were undertaken to address the continuing underlying constitutional condition of the applicant, and that that information was not in the possession of the respondent at the time of making those particular determinations pursuant to section 16 of the Act. Certainly, the principle in Hannaford is still authoritative. Recently, in Clavero and Australian Postal Corporation, Deputy President Sosso explained that the Full Federal Court in Hannaford made it very clear that future decision makers are empowered to make subsequent findings of fact in relation to previous determinations under sections 16 and 19 of the Act.[86][85] (2006) 151 FCR 253; [2006] FCAFC 87.[86] [2020] AATA 4167, at [83]. The new evidence that has been obtained by the respondent is referenced in the Respondent's Statement of Facts, Issues and Contentions dated 8 August 2018. If the respondent wishes to rely on the Hannaford decision, it would have been appropriate for such a contention to have been then contained in the Respondent's Statement of Facts, Issues and Contentions. If the applicant had been provided with such a contention at the time of the lodgement of the Respondent's Statement of Facts, Issues and Contentions, then the applicant could have taken advice on the possible risk that she may have faced if the Hannaford decision had been applied by the Tribunal. It may well have been the case that the applicant could have considered whether to withdraw her application. If the Tribunal had decided to apply the Hannaford decision, the applicant may have faced a significant financial liability. In my opinion it is not fair for the respondent to raise the possible application of the Hannaford decision after the hearing of the application. I have come to this decision having regard to the statutory direction to the Tribunal to provide a mechanism of review that is, inter alia, “fair”.[87][87] Administrative Appeals Tribunal Act 1975 (Cth) paragraph 2A(b).Physical condition I have earlier mentioned that there were a number of lay witnesses called to give evidence before the Tribunal. A number of lay witnesses were related to the applicant and could be expected to have observed the applicant at various times. The tenor of their evidence was that the life of the applicant had changed after the 2008 workplace injury. The first time that one of her sons (Mr Adrian Leary) had seen the applicant after her injury was in 2010 when she was using a walking stick and using strong pain medication. One of the work colleagues of the applicant (Mr Howard) had stated that the work incident had consumed the life of the applicant. The husband of the applicant (Mr Barry Crick) in his statement (at [10]) had stated that the applicant was not badly hurt after her car accident in 2006. While I accept that these lay witnesses gave evidence to the best of their recollection, it is apparent that the lay witnesses were not fully aware of the pain and discomfort that the applicant had experienced after her car accident in 2006.