Davis and Comcare (Compensation) - [2017] AATA 93

Davis and Comcare (Compensation) [2017] AATA 93 (27 January 2017)
Division:GENERAL DIVISION
File Number(s): 2014/4683, 2015/5257
Re:Kathryn Davis
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:27 January 2017
Place:Canberra

In matter 2014/4683, the Tribunal sets aside the reviewable decision of 31 July 2014 and finds instead that Comcare is liable under s 14 for the Applicant’s condition of aggravation of right knee anterior cruciate ligament disruption with complex tear of the medial meniscus, together with osteoarthritis of the right knee.
In matter 2015/5257, the Tribunal makes no decision.

.....................[sgd]...................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – claim for multiple injuries – whether aggravation of previous injury – whether sudden or identifiable physiological change – where competing medical hypotheses for injury – reviewable decision set aside and s 14 liability decided in place
JURISDICTION – where reviewable decision made outside decision maker’s power – failure of decision maker to follow steps of relevant Act – where neither decision maker genuinely considered question of aggravation of injury – where issue within infected claim better dealt with in alternate claim.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Abrahams vComcare (2006) 93 ALD 147
Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Comcare v Muir [2016] FCA 346
Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
REASONS FOR DECISION
Deputy President Gary Humphries
27 January 2017

Kathryn Davis was a Commonwealth employee when, in the course of her duties, she suffered two falls – one in 2006 and the other in 2013. Both gave rise to injuries, and she made compensation claims against the Commonwealth in respect of each.
The circumstances of Ms Davis’s (the applicant in these proceedings) unfortunate accidents were not in serious dispute before the Tribunal, but the nature and extent of the injuries they lead to certainly were. The scope of the claims for compensation she made was also a matter in dispute before the Tribunal. In fact, the Tribunal finds that confusion between the parties as to the scope of the second of her claims, 2015/5257, is such that Comcare has not validly made a decision pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the claim. However, the Tribunal does have jurisdiction to consider her first claim, 2014/4683, and finds in respect of that claim that she is entitled to compensation pursuant to s 14 of the Act.
Relevant facts
Ms Davis has been employed at all relevant times by the Department of Human Services and its earlier incarnations.
From about August 2004 to February 2006 she consulted her GP, Dr Tang, regarding right knee pain and elevated urate levels.
On 7 February 2006 she was walking from her workplace to her car when she tripped…

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 Davis and Comcare (Compensation)

Details

AGLC: Davis and Comcare (Compensation) [2017] AATA 93
Case: [2017] AATA 93
Decision Date: 27 January 2017

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal by Ms Davis against decisions made by Comcare. Ms Davis had lodged two claims for compensation: one related to a fall in 2006 and another related to a fall in 2013. The dispute centred on the nature and extent of the injuries sustained and whether they were attributable to the falls, with competing medical hypotheses presented regarding the cause of a chronic right knee condition.

The Tribunal was required to determine whether Comcare had validly made a decision in respect of Ms Davis's second claim (2015/5257), and whether Ms Davis was entitled to compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (the Act) in relation to her first claim (2014/4683). Specifically, the Tribunal had to consider if the injuries claimed constituted a new injury or an aggravation of a pre-existing condition, and whether the decision-making process followed the statutory requirements.

The Tribunal found that Comcare had not validly made a decision in relation to the second claim (2015/5257) because the claim had been mischaracterised, leading to a failure to follow the required procedural stages under the Act. This meant the Tribunal lacked jurisdiction to review that decision. However, the Tribunal held jurisdiction to consider the first claim (2014/4683). Applying the principles of statutory interpretation and drawing on medical evidence, the Tribunal determined that Ms Davis had suffered an injury in the course of her employment, either as a new injury or an aggravation of a previous condition, satisfying the criteria under section 14 of the Act.

Consequently, the Tribunal set aside Comcare's decision to deny liability for the first claim and found that Ms Davis was entitled to compensation under section 14 of the Act for that claim. The Tribunal's jurisdiction was limited to the first claim due to the procedural defects identified in the second claim.

Orders

Orders of the court

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Background

Background to the litigation

The circumstances of Ms Davis’s (the applicant in these proceedings) unfortunate accidents were not in serious dispute before the Tribunal, but the nature and extent of the injuries they lead to certainly were. The scope of the claims for compensation she made was also a matter in dispute before the Tribunal. In fact, the Tribunal finds that confusion between the parties as to the scope of the second of her claims, 2015/5257, is such that Comcare has not validly made a decision pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of the claim. However, the Tribunal does have jurisdiction to consider her first claim, 2014/4683, and finds in respect of that claim that she is entitled to compensation pursuant to s 14 of the Act.Relevant facts Ms Davis has been employed at all relevant times by the Department of Human Services and its earlier incarnations. From about August 2004 to February 2006 she consulted her GP, Dr Tang, regarding right knee pain and elevated urate levels. On 7 February 2006 she was walking from her workplace to her car when she tripped on uneven ground and fell (the 2006 fall). She was subsequently diagnosed with a right knee abrasion and left ankle sprain by Dr Tang. Her claim for compensation under the Act for these injuries was accepted by Comcare on 2 March 2006. She underwent physiotherapy and had diagnostic imaging during 2006, and in June 2007 consulted Dr Lo, who noted tender medial joint? collateral ligt/?meniscus injury. She consulted other doctors and a physiotherapist during 2008 and 2009 in relation to her knee and ankle conditions. In May 2008 Ms Davis made a further claim for compensation in relation to contusion – foot (right) and chondromalacia of patella (right). Comcare rejected liability for this claim in October 2008. On 3 October 2013 Ms Davis had a further fall while walking to her workplace (the 2013 fall). Dr Tang diagnosed sore right knee; tender right knee lateral joint line. An MRI of her knee on 29 October 2013 led to the notation: Chronic ACL [anterior cruciate ligament] rupture confirmed. Moderate lateral compartment and marked medial compartment wear with a chronic complex tear of the medial meniscus. No lateral meniscus tear. Small chondral fissure noted at median patellar ridge. On 2 or 12 December 2013 (the date is unclear) Ms Davis made a claim for compensation for the 2013 fall, claiming injuries to her right knee and right wrist. The claim referred to right knee ACL disruption with complex tear of the medial meniscus being an aggravation of the right knee pain and hurt right ankle. On 21 February 2014 Comcare denied liability for this claim on the basis that it was not a new injury, and that the symptoms were attributable to the 2006 fall. On 17 April 2014, Ms Davis wrote to Comcare requesting that her previous, accepted claim in relation to the 2006 fall be reopened/reviewed in light of my current injury. On 20 August 2014 Comcare responded, saying that liability was not accepted for an injury to your right knee [in relation to the 2006 fall] and denying liability for an injury under s 14 or for payments for medical treatment under s 16 of the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Two decisions of Comcare were affirmed on reconsideration, and now come before the Tribunal for review:·the decision of 31 July 2014, affirming the decision of 21 February 2014 to deny liability under s 14 for the 2013 fall (matter 2014/4683); and·the decision of 11 November 2014, affirming the decision of 20 August 2014 to deny liability under ss 14 and 16 for the 2006 fall (matter 2015/5257).The validity of Comcare's decision in 2015/5257 Ms Davis’s more recent claim in relation to the 2006 fall, which comes before the Tribunal in matter 2015/5257, has taken an unusual course, which has led in turn to some mischaracterisation of the nature of that claim on the part of the decision makers who dealt with it. The outcome of this is that, in the Tribunal’s opinion, Comcare’s purported decision falls outside the terms of the Act. The reasons are set out below. The scheme of the Act envisages three distinct stages in the progression of a claim for workers compensation before the Tribunal is conferred with the power to undertake merits review in relation to that claim. The first is the submission of a claim for compensation in a form approved by Comcare (s 54(2)). The second is a determination of that claim by a determining authority (s 61(1A)). The third stage is reconsideration of the determination made under the second stage, either at the initiative of (usually) the applicant or of the determining authority on its own motion (s 62). Section 64 provides for the review of a reviewable decision by the Tribunal (s 60 defines a reviewable decision as one made under s 62). It is, however, axiomatic that the subject matter of the claim, the determination and the reconsideration under each of these three stages must be substantially the same. A reconsideration, for example, which dealt with a substantively different injury to the one considered in the determination at hand cannot, logically, be a fresh evaluation of the substance of the earlier determination, as the Act intends. It follows that the failure of a claim for a particular injury to pass through each of these three stages may well be fatal to the Tribunal’s capacity to undertake merits review of that claim. In Comcare v Muir[2016] FCA 346 the Federal Court found that the claim made originally by the applicant related to an injury in 2013, but before the Tribunal her claim included an injury occurring before 2013. As such, it held that the earlier injury had not been before Comcare when it determined liability under s 14, and in turn the Tribunal lacked the ability to consider that earlier injury. Madgwick J in Abrahams vComcare (2006) 93 ALD 147 at 152 observed:There is not always a bright dividing line available to assist in the decision whether powers of the kinds mentioned are being exercised in aid of a better understanding of a claim made in respect of an injury of which notice has been given, or whether the changed notice is sufficiently fundamental as to indicate that a different injury is being asserted, which will require a different decision from a decision in respect of the originally claimed injury under consideration. In determining that matter, considerations of the purpose of giving notice of injury, and more generally of enabling the decision-maker to have a fair opportunity to investigate the claim properly, are paramount.

Ratio Decidendi

Legal Principle Established

In live testimony, Dr Cairns said he believed that, typically, the action of falling forward with the knee hitting the ground would not rupture the ACL. He also doubted that the 2006 fall could have caused this injury given that Ms Davis had told him that she had only taken one day off work after the injury, which would not be consistent with as significant an injury as an ACL rupture.Consideration Neither Dr McDonald nor Dr Cairns considered that the ACL/meniscus injury had been caused by the 2013 fall. I accept that evidence. Dr McDonald thought it most probable that the injury derived from the 2006 fall; Dr Cairns was much more doubtful about that possibility, but could not be certain as to what precisely had caused the injury, beyond it being a trauma to the knee. Considerable time in the hearing was devoted to examining and cross-examining the medical witnesses as to the likelihood that the ACL/meniscus injury had been caused by the 2006 fall, and as to the contribution made by other factors affecting Ms Davis – such as a biomechanical, age-related disruption of her knee, hyperuricemia (indicating gout) and obesity – to the onset of that condition. Some evidence was also explored as to the possibility that Ms Davis experienced a right knee condition prior to the 2006 fall. I have not set out in detail any of this evidence, because I do not regard it as relevant. This is because, independently of the contribution made by the 2006 fall or the other factors mentioned, Ms Davis must succeed based on either of the medical hypotheses presented to the Tribunal. Although Comcare neither conceded nor denied that the 2013 fall had actually occurred, there was at the end of the day no serious dispute before the Tribunal that it had. It was common ground that the 2006 fall had occurred. It was, furthermore, not disputed that each fall would have occurred in the course of Ms Davis’s employment. Finally, it was not disputed that, as of late 2013, Ms Davis was suffering from a chronic right knee ACL disruption with complex tear of the medial meniscus, a condition associated with a trauma to her knee at some point in time. Against this background, the Tribunal faced two competing hypotheses as to what had caused that condition. Dr McDonald’s evidence was that the condition was most likely the result of the 2006 fall (and that the 2013 fall had little bearing on it). If the Tribunal accepts that evidence, Ms Davis has clearly suffered an injury (other than a disease) in the course of her employment – the test in s 5A. As such, the reviewable decision before the Tribunal, denying liability, would have to be set aside. Dr Cairn’s evidence was that the condition was almost certainly not the result of 2006 fall, but occurred due to some unspecified trauma prior to 2013. However, his opinion was that the 2013 fall aggravated the condition. Indeed, he thought the 2006 fall had also aggravated it. Again, if the Tribunal accepts that evidence Ms Davis meets the test for liability set out in s 5A, that is, she has suffered an aggravation of an injury (other than a disease), with the aggravation occurring in the course of her employment (paragraph (c) of the definition of injury in that section).