David and Comcare (Compensation) - [2019] AATA 5490

David and Comcare (Compensation) [2019] AATA 5490 (19 December 2019)
Division:GENERAL DIVISION
File Number(s): 2016/6495
2017/0423

Re:Albert David
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member M J McGrowdie
Date:19 December 2019
Place:Sydney

The decision of the Tribunal is that:
(1)The determinations of Comcare dated 19 October 2016 and 6 January 2017 are set aside in matter numbers 2016/6495 and 2017/0423 respectively and in substitution Comcare is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of right-sided fractures of the mid-tarsal bones on 3 January 2003 and the aggravation of a disease known as Charcot’s foot taken to have occurred on 3 January 2003;
(2)The matter is remitted to Comcare to determine any compensation payable in respect of a claim or claims pursuant to the Act; and
(3)The Respondent is to pay the Applicant’s costs of the proceedings in matter number 2016/6495 and matter number 2017/0423.

...................[sgd].....................................................
Senior Member M J McGrowdie
CATCHWORDS
Workers Compensation — Whether fracture in right foot in January 2003 – delayed diagnosis of fracture – whether aggravation of Charcot’s Foot with history of diabetes – liability to pay compensation – decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
CASES
Brackenreg v Comcare [2010] FCA 724
Prain v Comcare [2017] FCAFC 143
Telstra Corporation Ltd v Hannaford (2006)151 FCR 253
REASONS FOR DECISION
Senior Member M J McGrowdie
19 December 2019
INTRODUCTION

The Applicant, Albert David, born in 1966, brings these proceedings against Comcare for compensation benefits under the Act.
From 1985, the Applicant worked for the then Australian Customs and Border Protection Service and in 1993 began working out of Sydney Airport.
It is the Applicant’s case that on 3 January 2003 he suffered an injury to the right foot, namely, a stress fracture of the mid-tarsal bones, while climbing stairs to the control room.
The compensation sought in Matter No. 2016/4389 was for a “gym program”. In a reviewable decision made by Comcare on 16 June 2016 Comcare denied liability. However, at the hearing, the Applicant withdrew that claim.
A claim for permanent impairment is the subject of Matter No. 2016/6495. In a reviewable decision made on 19 October 2016, Comcare denied liability to pay compensation.
The Application in Matter No. 2017/0423 relates to a claim for medical expenses, incapacity payments, household services and attendant care services. A reviewable decision made on 6 January 2017 denied liability to pay compensation. The basis for the determination was said to be that the Applicant’s current condition, diagnosed to be Charcot’s foot secondary to diabetes, was that Comcare was no longer liable.
The background to this is that initially, Comcare had accepted liability for ankle strain on 3 January 2003 and had later amended that to “fracture of one or more metatarsal bones” of the right foot.
As the hearing developed, and given the Applicant’s pre-existing diabetes, Comcare raised the question of whether…

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 David and Comcare (Compensation)

Details

AGLC: David and Comcare (Compensation) [2019] AATA 5490
Case: [2019] AATA 5490
Decision Date: 19 December 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against decisions of Comcare regarding his entitlement to compensation. The central dispute revolved around whether an incident on 3 January 2003, involving climbing stairs, resulted in a fracture of the applicant's right mid-tarsal bone, which in turn contributed to the progression of Charcot's foot, a condition associated with diabetes. The applicant had a pre-existing history of diabetes, obesity, and foot ulcers prior to the incident. The court was required to determine if the applicant suffered a fracture on the specified date and if this injury or its subsequent aggravation constituted a compensable condition under the relevant legislation.

The legal issues before the court were whether the applicant sustained a fracture of his right mid-tarsal bone on 3 January 2003, and whether this injury, or the aggravation of his pre-existing Charcot's foot condition, was a result of the incident on that date, thereby establishing liability for compensation. The court had to consider the delayed diagnosis of the fracture, which was only identified through an X-ray taken on 29 August 2003, some eight months after the incident, and the medical opinions regarding the nature and timing of the injury and its relationship to the applicant's underlying diabetic condition.

The court reasoned that the evidence, including reports from medical specialists, supported the conclusion that the applicant did suffer a fracture of the right mid-tarsal bones on 3 January 2003, and that this injury contributed to the aggravation of his Charcot's foot. The court noted that stress fractures, such as the one potentially sustained, can present with minimal initial symptoms and may be easily missed, aligning with the applicant's initial treatment for a sprained ankle. The court found that liability existed under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for both the fracture and the aggravation of the Charcot's foot, deeming both to have occurred on 3 January 2003.

Consequently, the court set aside Comcare's previous determinations and substituted a finding that Comcare was liable to pay compensation. The matter was remitted to Comcare to determine the specific compensation payable, and Comcare was ordered to pay the applicant's costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The central issue is whether the incident climbing stairs on 3 January 2003 resulted in a fracture of the Applicant’s right mid-tarsal bone which has contributed to a material degree to the progression of what has been described as a Charcot’s foot.BACKGROUND AND DISCUSSION Charcot’s foot is a description of a marked disorganisation of the bony structure of the foot particularly the joints and is a form of diabetic neuropathy. The Applicant was diagnosed with diabetes in 1997 and had suffered with ulcers of the right foot prior to the incident on the stairs. He also had a history of being obese. The issue of whether the Applicant suffered a fracture of the right foot on the stairs on 3 January 2003 first arises from because the initial report of injury by the Applicant following the incident was pain in the calf or lower leg. He was treated for a sprained ankle. It was only on 29 August 2003 when the Applicant had an X-ray that there had been a fracture in the right foot with some other bony disintegration. Dr Keller, from the Airport Medical Centre, who had requested the X-ray, saw the Applicant on 1 September 2003. On that occasion, Dr Keller noted that the Applicant tripped on the stairs and diagnosed “Charcot joint post-traumatic fracture”. This is the first mention of “a trip”. Dr Keller referred the Applicant to Dr Rizkallah, orthopaedic surgeon who saw the Applicant on 2 September 2003. In a report dated 10 September 2003 there is a history that on 3 January 2003 the Applicant tripped while climbing stairs. In the report Dr Rizkallah states that:-“I had a chance to review his recent X-ray performed on the 29th August 2003 and this demonstrated soft tissue swelling around the ankle joint with no recent fracture. However, his right foot demonstrated a large fracture involving the head of the Talus with multiple fractures and disorganization of the mid-foot joints. His foot joints are out of alignment and there is evidence on the X-ray to indicate that these problems are long-standing although the fracture involving the Talus may be relatively recent.” The Applicant was also referred by Dr Keller to Dr Grace Warren, a specialist in the area. Dr Warren saw the Applicant on 22 September 2003 and reported on 25 September 2003. In her report, Dr Warren says that:-“The state of the bone on the radiographs would certainly be in keeping with a stress fracture in January this year. It is well accepted that stress fractures show very few initial symptoms, and so could easily be missed. I frequently see fractures (that) have not been specifically treated, in a similar condition to Albert’s, in the 6-12 month post-trauma period.” Dr Warren continued to treat the Applicant with a series of contact casts. The only history recorded by Dr Warren of an event was that the Applicant was walking upstairs in January 2003 and was treated at the time for muscle trauma and swelling of the ankle area which persisted until the X-ray in August 2003.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I conclude that liability exists under Section 14 of the Act namely, a right-sided fracture of the mid-tarsal bones on 3 January 2003 and the aggravation of a disease known as Charcot’s foot taken to have occurred on 3 January 2003.DECISION The decision of the Tribunal is that:-(1)The determinations of Comcare dated 19 October 2016 and 6 January 2017 are set aside in matter numbers 2016/6495 and 2017/0423 respectively and in substitution Comcare is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of right-sided fractures of the mid-tarsal bones on 3 January 2003 and the aggravation of a disease known as Charcot’s foot taken to have occurred on 3 January 2003; (2)The matter is remitted to Comcare to determine any compensation payable in respect of a claim or claims pursuant to the Act; and (3)The Respondent is to pay the Applicant’s costs of the proceedings in matter number 2016/6495 and matter number 2017/0423.

Ratio Decidendi

Legal Principle Established

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