Demirbas and Comcare (Compensation) - [2018] AATA 1827

Demirbas and Comcare (Compensation) [2018] AATA 1827 (15 June 2018)
Division:GENERAL DIVISION
File Number(s): 2016/4037
2017/4241

Re:HALIL DEMIRBAS
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member

Date:15 June 2018
Place:Melbourne

The Tribunal sets aside the reviewable decisions under review.
........................[sgd]................................................
R Cameron, Senior Member
Catchwords
COMPENSATION – left leg sciatica –
bilateral rhizolysis procedure – whether surgery compensable – whether pain migratory from left to right – acceleration of existing condition – aggravation of existing condition
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Australian Postal Corporation v Sellick [2008] FCA 236
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Salisbury v Australian Iron and Steel Ltd (1943) 44 SR NSW 157
REASONS FOR DECISION
R Cameron Senior Member
15 June 2018
INTRODUCTION

There are two applications before the Tribunal. The first application is in proceeding number 2016/4037 (“the First Proceeding”). The second application is in proceeding number 2017/4241 (“the Second Proceeding”).
In the First Proceeding a Review Officer of the Respondent on 18 July 2016 affirmed a decision made by the Respondent on 19 April 2016 denying the Applicant medical expenses under section 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) (“the First Reviewable decision”).
In the Second Proceeding a Review Officer of the Respondent on 21 June 2017 affirmed a decision made by the Respondent on 22 February 2016 which denied liability to the Applicant under section 16 of the SRC Act for a laminectomy of L4/5 and bilateral rhizolysis procedure (“the Second Reviewable decision”).
THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL
There was documentary evidence together with viva voce evidence from several witnesses.
The documentary evidence consisted of the following:
(a)Statement of evidence of the Applicant dated 27 February 2018;
(b)Report by Mr Thomas Kossman dated 21 January 2017;
(c)The T documents for the First Proceeding;
(d)The T documents for the Second Proceeding;
(e)Radiology report dated 7 May 2002; and
(f)CT Scan report dated 21 October 2005; and
Viva voce evidence was given by;
(a)The Applicant;
(b)Mr Thomas Kossman; and
(c)Dr Gautam Khurana.
Additionally, Statements of Facts, Issues and Contentions were filed by both parties.[1]
[1] The Applicant's Statement of Facts, Issues and Contentions was filed on 22 February 2018 and the Respondent's Statement of Facts, Issues and Contentions was filed on 20 March 2018.
THE EVIDENCE OF THE APPLICANT
The Applicant adopted his witness statement made on 27 February 2018 during the course of his evidence and then supplemented it with further evidence in chief. He stated that he is currently 54 years of age. His current employment is with the Department of Human Services as a Customer Service Officer (CSO). Such duties having commenced in approximately September 2002. In his role as a CSO he carried out a variety of administrative functions. In the course of such employment he had regular use of what was described as a multifunction photocopier or printer. Usually, he would…

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.

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Details

Case: [2018] AATA 1827
Decision Date: 15 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by the Applicant, Mr. Demirbas, against a decision by Comcare to deny liability for a laminectomy and bilateral rhizolysis procedure under section 16 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The Applicant had suffered an injury on 17 September 2003 while working as a Customer Service Officer, when a paper tray fell from a photocopier and he experienced a sudden discomfort or "twinge" in his lower back while attempting to catch it. The core dispute revolved around whether this incident aggravated a pre-existing condition of lower lumbar multilevel spine degeneration, leading to compensable sciatica.

The Tribunal was required to determine whether the Applicant's pre-existing spinal degeneration was permanently aggravated by the incident with the photocopier, resulting in the sciatica for which he sought compensation. This involved assessing the causal link between the 2003 incident and the subsequent worsening of his condition, including the migration of pain from his left to his right leg, and whether the surgery undertaken in 2016 was a consequence of this aggravation. The Tribunal also considered conflicting medical evidence regarding the migratory nature of sciatic pain.

The Tribunal accepted the Applicant's evidence regarding the incident and the subsequent pain, finding that it had continued and progressively worsened, significantly impacting his ability to perform basic functions. It concluded that the 2003 incident permanently aggravated the Applicant's pre-existing condition, causing the sciatica that was ultimately relieved by the surgery. While acknowledging a potential conflict between the medical opinions of Mr. Kossman and Dr. Khurana regarding the migratory nature of pain, the Tribunal found that Dr. Khurana's concession, accepting the Applicant's history as indicative of pathological change, resolved this issue. The Tribunal preferred Mr. Kossman's overall opinion, particularly in light of his amplified explanations in oral evidence concerning the transfer of symptoms.

The Tribunal found in favour of the Applicant, overturning Comcare's decision and affirming liability for the surgery.

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

Additionally, Statements of Facts, Issues and Contentions were filed by both parties.[1][1] The Applicant's Statement of Facts, Issues and Contentions was filed on 22 February 2018 and the Respondent's Statement of Facts, Issues and Contentions was filed on 20 March 2018.THE EVIDENCE OF THE APPLICANT The Applicant adopted his witness statement made on 27 February 2018 during the course of his evidence and then supplemented it with further evidence in chief. He stated that he is currently 54 years of age. His current employment is with the Department of Human Services as a Customer Service Officer (CSO). Such duties having commenced in approximately September 2002. In his role as a CSO he carried out a variety of administrative functions. In the course of such employment he had regular use of what was described as a multifunction photocopier or printer. Usually, he would walk from his desk to the printer whenever he needed to copy or print documents. The accident was on 17 September 2003 in the course of such duties with Centrelink at its Frankston office. The Applicant was using the printer when a paper tray attached to the printer fell off and he attempted to catch it to stop it from falling to the ground. In doing so he turned to his left side rather suddenly, aiming to catch the tray when he felt what he described as a “twinge” in his lower back.[2] He was leaning forward trying to catch the photocopier paper tray but ultimately he was unsuccessful in such endeavours.[2] Whilst not much turns on it, it appears that he has used several terms to describe this initial reaction upon turning to try and catch the photocopy paper tray. In his statement of 27 February 2018 as noted above and in a history given to Dr Kossman he described it as a "twinge". In his evidence in chief he stated "I felt pain". Mr Khurana recorded it as feeling a "tinch". In the "Report of Injury or Disease” dated 18 November 2003 (document T 4 of the T documents) it is described as "a ping in my lower back"; the same wording is used in the "Claim for Compensation (Employee) and Rehabilitation Report’ that he lodged on 7 November 2003 (document T 5 of the T documents) at page 15. When probed in the course of his evidence in chief as to the meaning of the term "ping in my lower back" he described it as being "a sudden discomfort". No point was taken by the Respondent concerning this variation in terminology and it is considered that overall it is consistent with his description of what he felt during the incident concerned. It appears that after the incident with the photocopier paper tray the Applicant did not take any time off work that day.[3][3] This was conceded by the Applicant during the course of his cross-examination by counsel for the Respondent. It was also raised in cross-examination, with which the Applicant agreed, that in his report of the injury which is found at document T 4 of the T documents (page 10) it recorded that he did not take any time off work.

Decision

Reasons for decision

In the Second Proceeding a Review Officer of the Respondent on 21 June 2017 affirmed a decision made by the Respondent on 22 February 2016 which denied liability to the Applicant under section 16 of the SRC Act for a laminectomy of L4/5 and bilateral rhizolysis procedure (“the Second Reviewable decision”). THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL There was documentary evidence together with viva voce evidence from several witnesses. The documentary evidence consisted of the following:(a)Statement of evidence of the Applicant dated 27 February 2018;(b)Report by Mr Thomas Kossman dated 21 January 2017;(c)The T documents for the First Proceeding;(d)The T documents for the Second Proceeding;(e)Radiology report dated 7 May 2002; and(f)CT Scan report dated 21 October 2005; and Viva voce evidence was given by;(a)The Applicant;(b)Mr Thomas Kossman; and(c)Dr Gautam Khurana. Additionally, Statements of Facts, Issues and Contentions were filed by both parties.[1][1] The Applicant's Statement of Facts, Issues and Contentions was filed on 22 February 2018 and the Respondent's Statement of Facts, Issues and Contentions was filed on 20 March 2018.THE EVIDENCE OF THE APPLICANT The Applicant adopted his witness statement made on 27 February 2018 during the course of his evidence and then supplemented it with further evidence in chief. He stated that he is currently 54 years of age. His current employment is with the Department of Human Services as a Customer Service Officer (CSO). Such duties having commenced in approximately September 2002. In his role as a CSO he carried out a variety of administrative functions. In the course of such employment he had regular use of what was described as a multifunction photocopier or printer. Usually, he would walk from his desk to the printer whenever he needed to copy or print documents. The accident was on 17 September 2003 in the course of such duties with Centrelink at its Frankston office. The Applicant was using the printer when a paper tray attached to the printer fell off and he attempted to catch it to stop it from falling to the ground. In doing so he turned to his left side rather suddenly, aiming to catch the tray when he felt what he described as a “twinge” in his lower back.[2] He was leaning forward trying to catch the photocopier paper tray but ultimately he was unsuccessful in such endeavours.[2] Whilst not much turns on it, it appears that he has used several terms to describe this initial reaction upon turning to try and catch the photocopy paper tray. In his statement of 27 February 2018 as noted above and in a history given to Dr Kossman he described it as a "twinge". In his evidence in chief he stated "I felt pain". Mr Khurana recorded it as feeling a "tinch". In the "Report of Injury or Disease” dated 18 November 2003 (document T 4 of the T documents) it is described as "a ping in my lower back"; the same wording is used in the "Claim for Compensation (Employee) and Rehabilitation Report’ that he lodged on 7 November 2003 (document T 5 of the T documents) at page 15. When probed in the course of his evidence in chief as to the meaning of the term "ping in my lower back" he described it as being "a sudden discomfort". No point was taken by the Respondent concerning this variation in terminology and it is considered that overall it is consistent with his description of what he felt during the incident concerned.

Ratio Decidendi

Legal Principle Established

Aggravation, his Honour considered, connotes the disease becoming more severe. These are really not difficult concepts to comprehend.CONSIDERATION AND CONCLUSION The medical evidence before the Tribunal in this matter demonstrates that the Applicant was at the time of the incident with the photocopier paper tray in September 2003 suffering from lower lumbar multilevel spine degeneration. This was not inconsistent with what to expect for a person of his age at the time of such incident. As noted earlier the Tribunal accepts the evidence of the Applicant concerning the incident with the photocopier paper tray and the “twinge”, “pain”, “pinch”, “ping” in his lower back and/or “sudden discomfort” that followed such an incident. Also accepted by the Tribunal is the evidence of the Applicant that this pain has continued since that date and became progressively worse to the point that he struggled to use his legs for basic functions such as walking, standing and even sitting[40]. Such pain and its evolutionary path or as Dr Khurana described its “trajectory”, as described by the Applicant, was caused by the incident with the photocopier paper tray in 2003. Accordingly, in such circumstances the condition that the Applicant had of lower lumbar multilevel spine degeneration was permanently aggravated, causing the sciatica complained of, which was only relieved by the decompressive surgery that the Applicant undertook in May of 2016.[40] As noted earlier he gave evidence to this effect in his witness statement, viva voce evidence and in histories to several medical practitioners. Some observations should be made concerning what appears from reading the respective reports of Mr Kossman and Dr Khurana a conflict between their evidence. Whilst at least to some level there is a conflict between Mr Kossman’s conclusion that the sciatic pain can move from left to right and Dr Khurana’s evidence that such sciatic pain tends to be unilateral or bilateral but not migratory. However, when one carefully considers the evidence given by both of them in the witness box in conjunction with the contents of their reports, such conflict is not so clear-cut. The reason why such conflict does not emerge following a face value reading of the respective reports of Mr Kossman and Dr Khurana coupled with their evidence in the witness box is the concession made by Dr Khurana in cross-examination, which as noted earlier goes very much to his credit. Dr Khurana conceded that if the Applicant’s history concerning the incident with the photocopier paper tray in September 2003 and the subsequent pain symptoms is accepted, it pointed to a pathological change which set the trajectory described. Therefore, whether the conclusion expressed by Mr Kossman or Dr Khurana is correct or not, such conflict does not need to be resolved in the face of such concession. In so far as the Tribunal is required to resolve such conflict between the conclusions reached by Mr Kossman and Dr Khurana, it considers that overall the opinion of Mr Kossman is to be preferred. The Tribunal acknowledges that, as submitted by the Respondent, Mr Kossman’s report perhaps does not have the level of reasoning or explanation, concerning the contribution to the injury suffered by the Applicant by the incident with the photocopier paper tray in 2003, that he offered in the witness box. When he was in the witness box he did amplify his opinion in a way that addressed these concerns, particularly in the context of explaining the transfer of pain or the migration of such symptoms experienced by the Applicant from the left leg to the right leg.