Darren Greaves and Comcare - [2015] AATA 177

[2015] AATA 177

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/6026

Re

Darren Greaves

APPLICANT

And

Comcare

RESPONDENT

Decision

Tribunal
Deputy President K Bean

Date 26 March 2015

Place Canberra
The decision under review is affirmed.

..............................[sgd]..........................................
Deputy President K Bean
Catchwords
COMPENSATION - Commonwealth employees - Whether Applicant continues to suffer effects of injury - Nature of injury suffered - Whether symptoms result from pre-existing degenerative condition - Decision under review affirmed.
Legislation
Safety, Compensation and Rehabilitation Act 1988 ss 16 and 19
CASES
Commonwealth v Borg (1994) 20 AAR 299 at 307
REASONS FOR DECISION
Deputy President K Bean
26 March 2015

In June 2009, the applicant, Mr Greaves, was employed as a cook at Canberra Hospital where his brother also worked as a cook. On 29 June 2009, he was working with his brother in the kitchen at the hospital when the two of them lifted a relatively heavy mixing bowl which had “meatloaf mixture in it”.[1] Unfortunately, this resulted in Mr Greaves suffering back pain, for which he was treated later that day.
[1] Exhibit 1, T7/36.
The day after suffering this injury, Mr Greaves lodged a claim for workers’ compensation in respect of “low back pain”,[2] and on 31 July 2009, the respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the conditions of “lumbar sprain”, “sprain of ribs (right)”, and “specified sites of sprains and strains (left) (inguinal strain)”.[3]
[2] Exhibit 1, T4/19.
[3] Exhibit 1, T10/39.
Mr Greaves subsequently attempted to return to work in September 2009, but unfortunately this attempt was not successful. He ultimately ceased employment with the hospital on 28 February 2010.[4] He claims that he has continued to experience back pain since suffering the injury, albeit the level of that pain has fluctuated. Accordingly, he contends that he remains entitled to receive compensation in respect of his injury.
[4] Exhibit 1, T36/153.
However, in light of the then current medical evidence, on 26 July 2013, the respondent determined that Mr Greaves no longer suffered from the effects of his accepted conditions, and accordingly had no ongoing entitlement to payment of compensation in respect of incapacity or medical treatment.[5]
[5] Exhibit 1, T41.
That determination was affirmed on reconsideration on 9 September 2013,[6] and on 25 November 2013, Mr Greaves applied to this Tribunal for review of the reconsideration decision, giving rise to these proceedings.
[6] Exhibit 1, T43.
the statutory framework
In this context, the most relevant provisions are ss 16 and 19 of the SRC Act which govern an employee’s entitlement to the payment of medical expenses and incapacity payments respectively. The most relevant terms of ss 16 and 19 are set out below:
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it…

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 Darren Greaves and Comcare

Details

AGLC: Darren Greaves and Comcare [2015] AATA 177
Case: [2015] AATA 177
Decision Date: 26 March 2015

CaseChat Overview and Summary

In the case of Darren Greaves and Comcare, the applicant, Mr Greaves, sought compensation for ongoing back pain and incapacity following an injury sustained at work on 29 June 2009. The dispute centred on the nature of the injury and whether the applicant's ongoing symptoms were a result of the injury or a pre-existing degenerative condition. The matter was heard by the Administrative Appeals Tribunal (AAT) and the decision under review was affirmed.

The legal issues before the AAT were whether the applicant continued to suffer effects of the injury and, if so, the precise nature of the injury. The AAT examined the documentary evidence, including medical certificates, reports, and imaging results, as well as the oral evidence given by the applicant and medical experts. The AAT had to determine whether the ongoing back pain and incapacity were a result of the injury or if they were due to the applicant's pre-existing degenerative condition.

The AAT concluded that the applicant continued to suffer from ongoing back pain and incapacity, but found that the symptoms resulted from a pre-existing degenerative condition rather than the injury. The AAT noted that there was no dispute that the applicant suffered an injury on 29 June 2009, but concluded that the ongoing symptoms were not a direct result of that injury. The AAT found that the evidence demonstrated a functional or non-organic component in the applicant's present condition, which suggested that the ongoing symptoms were influenced by factors other than the injury.

The AAT affirmed the decision under review, finding that the applicant was not entitled to compensation for ongoing back pain and incapacity as the symptoms were not a direct result of the injury. The AAT's decision was based on the documentary and oral evidence presented, as well as the medical opinions provided by the experts. The AAT found that the applicant's pre-existing degenerative condition played a significant role in the ongoing symptoms, and therefore, the decision under review was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

As there is no dispute on the evidence that Mr Greaves continues to suffer from a degree of ongoing back pain and incapacity, the first relevant question for me to address in this context is the precise nature of the injury suffered by Mr Greaves on 29 June 2009. In addressing that question, I will first discuss the salient aspects of the documentary evidence, before turning to the oral evidence given at the hearing.The documentary evidence On the day of the accident, Mr Greaves was apparently examined by a doctor at Canberra Hospital who indicated that he was suffering from ‘back pain’ and would be unfit to return to work until 3 July 2009 and potentially until 10 July 2009.[7] The doctor prescribed physiotherapy and review by his general practitioner before Mr Greaves returned to work. The doctor also noted as a pre-existing or contributing factor “back pain for one month”.[8] For completeness, also before me is a note apparently written by a physiotherapist at the Canberra Hospital on the date of the injury, 29 June 2009, stating “Reports similar pain in past – no treatment sought”.[9] [7] The Tribunal notes that on completing the Medical Certificate for Workers Compensation the author has written that the applicant “is unfit to work from 29/6/09 to 3/6/09 and may not be fit until 10/6/09”.[8] Exhibit 1, T3/15.[9] Exhibit 4, Tab 28. In a form subsequently provided to Comcare, Mr Greaves’ General Practitioner, Dr Bradfield, indicated that Mr Greaves had suffered a right rib strain and left inguinal strain as well as other muscular damage.[10] Mr Greaves was subsequently examined by Dr Ian Low, Specialist in Occupational Medicine, on 21 October 2009. Dr Low concluded that Mr Greaves had “strained his torso” and was not suffering from significant lower back pathology.[11] Dr Bradfield nevertheless ordered a CT scan of Mr Greaves’ lumbar spine in November 2009 which showed a “broadbased disc bulge” at L4/5 as well as “degenerative change” and “a small broadbased disc bulge” at L5/S1.[12][10] Exhibit 1, T9/38.[11] Exhibit 1, T13/47.[12] Exhibit 1, T14/48. Mr Greaves was later examined at the respondent’s request by Dr William Coyle, Orthopaedic Surgeon, in March 2010. Dr Coyle concluded that Mr Greaves “may have sustained a soft tissue injury to his left loin or low back and even aggravated pre-existing lumbosacral disc pathology”[13] in the injury. He noted that Mr Greaves had “some symptoms and signs consistent with lower lumbar disc injury … but his presentation is unusual and suggests a functional or non-organic component in his present condition”.[14] Further imaging in the form of an MRI scan of Mr Greaves’ lumbar spine undertaken in May 2010 showed a small annular tear associated with a small broad-based disc bulge at L3/4, and a central annular tear with a small central disc bulge at L4/5, together with a further small broad-based disc bulge at L5/S1.[15][13] Exhibit 1, T16/58.[14] Exhibit 1, T16/59.[15] Exhibit 1, T17/60.

Decision

Reasons for decision

Accordingly, I have decided to affirm the decision under review.decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6026
Re	Darren Greaves
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President K Bean
Date	26 March 2015
Place	Canberra