Dowey and Telstra Corporation Limited (Compensation)

[2022] AATA 3242

Dowey and Telstra Corporation Limited (Compensation) [2022] AATA 3242 (7 October 2022)

Division:GENERAL DIVISION

File Number:          2022/2608

Re:Graeme Dowey

APPLICANT

AndTelstra Corporation Limited

RESPONDENT

Decision

Tribunal:R Cameron, Senior Member

Date:7 October 2022

Place:Melbourne

The Tribunal dismisses the application under section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) as it has no reasonable prospects of success.

……...[sgd]...........................................................

R Cameron, Senior Member

CATCHWORDS

COMPENSATION – applicant seks compensation for permanent impariment and non-economic loss – consideration of medical reports - effects of injury passed – level of impairement found to be 8% - findings not challenged by the applicant – lower than 10% threshold – application dismissed as it has no reasonable prospect of success

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Carvalho v Comcare [2022] AATA 1081

Oliver v Comcare [2018] AATA 1964

REASONS FOR DECISION

R Cameron, Senior Member

7 October 2022

INTRODUCTION

1. In this matter the applicant seeks review of a reconsideration decision made on 7 February 2022, which affirmed a previous decision that he was not entitled to compensation for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the Act”) for pain and muscle spasm in the lumbar region sustained on 27 March 1985 (“the injury”) (“the reviewable decision”).[1]

   [1] This description of the injury is contained in the "Compensation Claim for Permanent Impairment" form signed and lodged by the applicant and is at T10 of the T documents. In response to the question as to what impairment has resulted from the condition the applicant completed in the form the words "back/hip".

2. The respondent previously accepted a claim under section 14 of the Act.

3. A claim was made by the applicant on 3 August 2010 in this Tribunal seeking review of a decision made on 31 May 2010, which affirmed a previous decision by the respondent to deny liability for pain and muscle spasm in the lumbar region (“the August 2010 claim”).[2] This claim had been denied on the grounds that the applicant no longer suffered from the effects of his previously compensable injuries as to require incapacity, medical or like expenses. In reaching this decision the respondent’s review officer referred to the evidence of a specialist orthopaedic surgeon retained to examine the applicant who found that his osteoarthritis of the left hip was not related to his previous employment with the respondent.[3] He further opined that the applicant suffered from a widespread degenerative disease in his spine which had only a fairly minor causal relationship to his previous employment.

   [2] The August 2010 claim in this Tribunal was application number 2010/3243. This description of the claim is taken from the Section 37 Statement which was document T3 of the T documents in that application.

   [3] The report was from Mr Buzzard and dated 2 October 2009 and is document T35 in the T documents in application No 2010/3243.

4. The August 2010 claim was heard and determined by this Tribunal. Written reasons were delivered. They are referred to in their entirety. In those reasons, amongst other things, the Tribunal considered the evidence of five medical specialists. All those medical specialists whose evidence was before the Tribunal opined that the changes in the applicant’s back were degenerative and part of the ageing process. Additionally, they did not express the opinion that the back complaint, which was the subject of that application, was due to the injury.

5. It is useful to reproduce the observations of the Tribunal as then constituted at paragraph [45] of its reasons as follows:

   “Expert specialist medical opinion, obtained in 2010 and 2011, is unanimous that the cause of any incapacity for work that Mr Dowey now has is due to his severe osteoarthritis of the left hip; and that this condition impacts on any lumbar spinal pain and spasm of paravertebral muscles that he presently suffers. None of the medical specialists has assessed Mr Dowey as having an impairment of 10%. They agree that once Mr Dowey undergoes a left total hip replacement he would have the capacity for work.”

   INTERLOCUTORY APPLICATION

6. The respondent has made an application for dismissal of the present application under the provisions of section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) on the grounds that it has no reasonable prospect of success.

   CONSIDERATION

7. Section 42B(1)(b) of the AAT Act provides as follows:

   “The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

   (b) has no reasonable prospect of success;”

8. The power to summarily dismiss an application under section 42B(1)(b) of the AAT Act must always be exercised with caution. In any application of the section the Tribunal must conduct an assessment of the evidence using a critical eye in order to determine whether the opposing party has evidence of sufficient quality and weight to be able to succeed at the hearing, with a view to determining whether there is a real issue of fact, or a real issue of law capable of being decided in that party’s favour. In doing so, the Tribunal must draw all reasonable inferences, but only reasonable inferences in favour of that party. In conducting such enquiries, the Tribunal is bound to give particular weight to expert medical evidence as it stands at the time it considers the exercise of the section 42B power.[4]

   [4] Oliver v Comcare [2018] AATA 1964 at [66] and Carvalho v Comcare [2022] AATA 1081 at [28].

9. A report from a Consultant Orthopaedic Surgeon Dr Ghan, dated 29 November 2021, was in evidence.[5] It is worthwhile reproducing the paragraph of that report from Dr Ghan in which he expresses his opinion as follows:

   “It is my opinion that the incident on 27 March 1985 caused acute musculoligamentous back sprain. There was no evidence of radiculopathy. He did not have any leg pain. With chiropractic manipulation he came good and returned to work soon after. His description of recurrent flare ups two to three times a year needing chiropractic manipulation is consistent with the diagnosis of lumbar musculoligamentous back strains which is very common in the labouring population and usually does not last more than two weeks, and responds well to rest and back exercises.”

   [5] Document T17 of the T documents in this application.

10. Dr Ghan expressed the opinion that the applicant did not suffer an impairment caused by the incident that occurred on 27 March 1985. He also opined that there was no whole person impairment assessable from the injury of 27 March 1985. This opinion expressed by Dr Ghan was not contradicted or subjected to any challenge in any material that was in evidence before the Tribunal.

11. Additionally, there was a report from Dr Kennedy, who describes himself as an “industrial physician” dated 14 March 2019.[6] He conducted a clinical assessment of the applicant prior to preparation of his report. He observed that there were no medical records, including radiological reports, made available at the time of formulating such report. He assessed the applicant in accordance with the criteria and methodology of assessment utilising the Comcare Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”). Dr Kennedy reported that under Table 9.17 of the Guide, with regard to the lumbosacral spine, the applicant has an 8% whole person impairment. Having considered the material before it and the submissions advanced by the applicant himself at the hearing before the Tribunal, the Tribunal is satisfied that he has no reasonable prospect of success with this application.

    [6] Document T8 of the T documents.

12. There is uncontradicted medical evidence, particularly that of Dr Ghan, that the applicant did not suffer a permanent impairment by reason of the incident on 27 March 1985. Any effects of the injury that he may have suffered on that day have long since passed.

13. In any event, if the level of impairment of the applicant’s lumbosacral spine is as assessed by Dr Kennedy an 8% whole person impairment (“WPI”) and if such injury was likely to have or did indeed become permanent soon after as a result of the injury, the applicant is still not able to establish liability under the Act. The reason for this is that when consideration is given to section 124 of the Act and the relevant provisions of the applicable 1971 legislation, compensation under sections 24 and 27 is not payable for back injuries that became permanent prior to 1 December 1988.

14. The Tribunal should observe that there is a difference of opinion between Dr Ghan and Dr Kennedy. Dr Ghan assessed that there was no whole person impairment. Dr Kennedy of course assisted at 8%. However, this difference of opinion is in the view of the camp Tribunal immaterial to the task that it has to undertake in determining this application. This is principally because both medical practitioners appear to be in agreement that there was no permanent impairment caused by the 27 March 1985 injury.

15. Finally, in the event that it could be established (which it has not) that the injury resulted in permanent impairment in the relevant sense after 1 December 1988, Dr Kennedy assessed the applicant’s impairment under the Guide at 8% WPI under Table 9.17 of the Guide. Dr Kennedy’s finding was not challenged by the applicant both at the hearing and in any material filed on his behalf in this application. This finding of the Tribunal at the very least must be based on this evidence. This percentage is lower than the 10% WPI threshold that the applicant must satisfy in order for such permanent impairment to be compensable under the relevant sections, namely sections 24 and 27 of the Act. Therefore, no entitlement to compensation under those sections arises.

    DECISION

16. By reason of the foregoing matters the Tribunal will dismiss the application under section 42B(1)(b) of the Act as it has no reasonable prospect of success.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd].............................................

Associate
Dated: 7 October 2022

Date of hearing:

5 October 2022

Applicant, self-represented:

Advocate for the Respondent:

Graeme Dowey

Kristina Miller

Solicitor for the Respondent:

Sparke Helmore